Cole Ex Rel. Estate of Cole v. Raut

HEARN, C.J.:

In this medical negligence action, Marty and Tracy Cole appeal from a verdict in favor of Dr. Pratibha P. Raut and her medical practice. The Coles argue the circuit court erred in charging the jury on assumption of risk. We agree, and reverse and remand for a new trial.

FACTS/PROCEDURAL BACKGROUND

The day before delivering her son, Kyle, Tracy Cole (“Cole”) was admitted to the hospital. Cole’s obstetrician, Dr. Raut, recommended that she undergo a vaginal birth after Cesarean section (“VBAC”). Although a VBAC carried risks including the possibility that the uterine scar from Cole’s previous C-Section could rupture during labor and deprive the baby of oxygen, this procedure was the recommended method of delivery at that time. Cole signed a consent form acknowledging the risks associated with the VBAC procedure. She consented to a vaginal delivery, induction with medication, augmentation with medication, and retained the option of delivering by C-section if necessary. The consent form specifically stated that Cole:

[R]ecognize[s] that during the course of the [procedure], unforeseen conditions may necessitate additional or different procedures or services than those set forth above and ... further authorize^] and requests] that the above named surgeon ... perform such procedures as are in his [sic] professional judgment, necessary and desirable.

The Coles admit that they “elected to face the risks of [VBAC]” and do not allege negligence in the doctor’s choice of treatment to which they had consented. Rather, they complain that Raut’s timing in ordering the C-section was a departure from the standard of care.

As part of the VBAC procedure, Raut induced Cole’s labor on February 21, 1997. Despite the decision to proceed with the VBAC, Raut retained a surgical crew on-call in case an emergency C-section became necessary. Cole’s labor progressed slowly. At approximately 1:30 a.m. the following day, *439a fetal heart monitor indicated changes in the baby’s heart rate. At approximately 2:00 a.m., changes in the baby’s heart rate necessitated administration of oxygen to Cole and continued close observation of the baby’s vital signs. At that time, Raut unsuccessfully attempted to notify the operating room personnel, who were engaged in another surgical procedure, to remain in the hospital. At 2:15 a.m., Cole began to complain of abdominal pains, indicating her uterine wall had ruptured and requiring an emergency C-section. At 2:20 a.m., Raut formally ordered that Cole undergo a C-section delivery. The surgical procedure began at 2:42 a.m., twenty-two minutes after the formal order. Kyle was born at 2:45 a.m. He suffered from brain damage and related problems including cerebral palsy, developmental delays, and a seizure disorder. Kyle died in August 2003 as a result of his conditions.

Both parties presented expert testimony. The Coles’ expert testified that in this case, waiting until 2:20 a.m. to order a C-section was “not acceptable.” He maintained that “early warning signs,” including variables in the baby’s heart rate, warranted that a C-section be ordered by 2:00 a.m. According to the Coles’ expert, had Dr. Raut ordered the C-section by 2:00 a.m., the operating room staff should have been able to perform the surgery and deliver the child at the latest by 2:30. The Coles’ expert testified that the baby would have been neurologically normal if he were delivered by “2:30 [a.m.] or 2:33 [a.m.] or 2:32 [a.m.].” The expert stated to a reasonable degree of medical certainty that “the doctor fell below reasonable standards of care when she failed to recognize the non-reassuring tracing [on the fetal heart monitor] at two o’clock and failed to set up for a possible emergency C-section.”

Raut presented two expert witnesses who testified that she did not deviate from the appropriate standard of care with respect to the timing of the C-section. One expert testified that there were no signs mandating an emergency C-section until 2:20 a.m. at which time Raut recognized the problem “right away” and “immediately then called for a stat C-section.”

During trial, Raut sought to amend her pleadings to include assumption of risk as an affirmative defense. The trial court reserved its ruling until the close of the evidence. At the *440close of the case, the trial court charged the jury on the law of negligence and on assumption of risk. The Coles objected to the charge of assumption of risk. The jury returned a general verdict for Raut. The Coles then moved for a new trial on the grounds that Cole never assumed the risk of a delayed emergency C-section. The trial court denied the motion.

SCOPE OF REVIEW

In reviewing a trial court’s decision regarding jury instructions, an appellate court will not reverse absent an abuse of discretion. Clark v. Cantrell, 339 S.C. 369, 389, 529 S.E.2d 528, 539 (2000). “An abuse of discretion occurs when the trial court’s ruling is based on an error of law or, when grounded in factual conclusions, is without evidentiary support.” Id. (citation omitted). The trial court is required to instruct the jury only on principles of law that apply to the issues raised in the pleadings and developed by the evidence in support of those issues. Id. at 390, 529 S.E.2d at 539.

DISCUSSION

The Coles argue the trial judge committed reversible error by instructing the jury on assumption of risk. We agree.

“[I]t is reversible error to charge a correct principle of law as governing a case when such principle is inapplicable to the issues on trial.” Miller v. Schmid Labs., Inc., 307 S.C. 140, 142-43, 414 S.E.2d 126, 127 (1992) (quoting Dunsil v. E.M. Jones Chevrolet Co., 268 S.C. 291, 295, 233 S.E.2d 101, 103 (1977)).

“In order for the doctrine of assumption of the risk to apply, the injured party must have freely and voluntarily exposed himself to a known danger which he understood and appreciated.” Faile v. Bycura, 289 S.C. 398, 399, 346 S.E.2d 528, 529 (1986) (citation omitted). The specific requirements of the defense of assumption of risk are: “(1) the plaintiff must have knowledge of the facts constituting a dangerous condition; (2) the plaintiff must know the condition is dangerous; (3) the plaintiff must appreciate the nature and extent of the danger; and (4) the plaintiff must voluntarily expose himself to the danger.” Davenport v. Cotton Hope Plantation *441Horizontal Property Regime, 333 S.C. 71, 79, 508 S.E.2d 565, 569 (1998) (citation omitted).

The doctrine of assumption of risk involves an intelligent and deliberate choice between a course known to be dangerous and what is not dangerous. It involves the taking of a calculated risk. Assumption of risk is a matter of knowledge of a danger and the intelligent acquiescence in it. The doctrine is predicated on the factual situation of a defendant’s acts alone creating the danger and causing the accident, with the plaintiffs act being that of voluntarily exposing himself to such an obvious danger with appreciation thereof which resulted in the injury.

Senn v. Sun Printing Co., 295 S.C. 169, 173, 367 S.E.2d 456, 458 (Ct.App.1988).

In the present case, Cole signed a consent form acknowledging the risks associated with the VBAC procedure. The consent form suggests Cole freely and voluntarily exposed herself and her child to a known danger associated with the VBAC procedure, which she understood and appreciated. However, nothing in the record suggests Cole assumed the risk associated with a delayed C-section delivery of her child following her decision to undergo the VBAC. Cole had no knowledge of the danger posed by a delay between the warning signs and the time the C-section was commenced. Moreover, Cole had no knowledge of the circumstances surrounding the delay. Without this knowledge, Cole could not appreciate the nature and extent of the danger or voluntarily expose herself and her child to such a danger. As a result, the trial judge erred in charging the jury on assumption of risk.

“The giving of an erroneous instruction is not reversible error, unless the appellant can show that he was injured and prejudiced thereby.” Ellison v. Simmons, 238 S.C. 364, 372, 120 S.E.2d 209, 213 (1961). In Ellison, the court found the trial judge erred in instructing the jury “that pecuniary loss will be presumed where the beneficiaries of the action for wrongful death are the widow and minor children of the decedent, when it is undisputed that all of the decedent’s children are adults.” Id. at 370, 120 S.E.2d 209, 212. However, the court found the error was not reversible because the *442appellant failed to show the charge was prejudicial when pecuniary loss was undisputed at trial and the judge also charged the jury on the elements to consider in awarding damages. In so holding, the Ellison court distinguished two cases, Wright v. Harris, 228 S.C. 144, 89 S.E.2d 97 (1955) and Citizens Bank of Darlington v. McDonald, 202 S.C. 244, 24 S.E.2d 369 (1943).

In Wright, the court stated:

[I]t is reversible error to charge a correct principle of law as governing a case when such principle is inapplicable to the issues on trial. Conflicting and irrelevant instructions constitute reversible error[;] and a trial Judge ought to take care not to confuse the jury by charging them on legal principles which are inapplicable to the case on trial....

228 S.C. at 148, 89 S.E.2d at 98 (citations omitted). The Wright court held an erroneous charge on breach of contract accompanied by a fraudulent act to be reversible error where the causes of action were founded solely in fraud and deceit. The Ellison court analyzed the erroneous charge in Wright, stating “[i]t is readily apparent that such a charge was prejudicial to the appellant.” 238 S.C. at 372, 120 S.E.2d at 213.

Similarly, in Citizens Bank of Darlington, the sole issue for trial was the genuineness of a payee’s signature on a check. 202 S.C. at 250, 24 S.E.2d at 373. The court determined that the trial judge erred in instructing the jury on conflicting burdens of proof and erred in charging the jury on estoppel. The court held that it was reversible error for the judge to give conflicting instructions and to instruct on irrelevant issues. Id. at 255, 24 S.E.2d at 375; See also Ellison, 238 S.C. at 372, 120 S.E.2d at 213.

The principles enunciated in Wright and Citizens Bank of Darlington have been consistently applied by this court and the supreme court. See Miller v. Schmid Labs., Inc., 307 S.C. 140, 142-43, 414 S.E.2d 126, 127 (1992) (finding reversible error to charge the correct definition of bilateral contract because the issue was irrelevant to whether an employee handbook could form the basis of a contract between an employer and employee); White v. Fowler, 276 S.C. 370, 372, 278 S.E.2d 777, 778 (1981) (stating that when the only reasonable inference from the evidence was that respondent’s action*443able negligence caused the accident, a charge on unavoidable accident was irrelevant and prejudicial); Dunsil v. E.M. Jones Chevrolet Co., 268 S.C. 291, 295, 233 S.E.2d 101, 103 (1977) (finding reversible error when “[t]he instructions by the court of irrelevant and inapplicable principles of law was clearly erroneous and may have been confusing to the jury”); Brown v. Howell, 284 S.C. 605, 610, 327 S.E.2d 659, 662 (Ct.App.1985) (concluding the trial judge’s instruction on avoidable accident was prejudicial when the issue was abandoned at trial).

In the present case, the erroneous charge of assumption of risk was irrelevant and inapplicable to the Coles’ allegations. The evidence demonstrates that while Cole may have assumed the risk for the VBAC procedure, she never assumed the risk for a delayed C-Section delivery, which was the basis of the Coles’ causes of action. The assumption of risk charge had the potential to confuse the jury concerning the underlying factual basis of the Coles’ claims and availed Raut with a defense that was not supported by the evidence. As a result, the Coles were prejudiced by the erroneous charge.

The Respondents argue that any prejudice occasioned by the erroneous charge is specifically defeated by the “two issue rule.” In essence, the Respondents are asserting that the Coles have failed to demonstrate any prejudice because the jury returned a general defense verdict, and we have no way to discern if it decided in favor of Raut on the assumption of risk defense or against the Coles on their negligence claim. We disagree.

As explained above, the trial judge instructed the jury on an inapplicable defense to the Coles’ medical negligence claims. Such an error likely confused the jury with respect to the relevant legal principles as well as the underlying facts of the causes of action subject to the inapplicable defense. Thus, because the Coles’ negligence claims were adversely impacted by the erroneous charge, the Coles’ prejudice is not defeated by the “two issue rule.” The general defense verdict is not independently supported by the negligence cause of action, and the Coles have no other causes of action to support the general verdict. See Ricks v. Jackson, 169 Ohio St. 254, 159 N.E.2d 225, 227 (Oh.1959) (explaining the two issue rule is *444used as a means of requiring an affirmative showing of prejudice in order to justify reversal, and finding that despite the two issue rule, an error in charging the jury on contributory negligence was prejudicial and reversible error).

Furthermore, we believe applying the “two issue rule” under the circumstances of this case presents an “unusual application” similar to the one that was soundly rejected in Anderson v. South Carolina Dep’t of Highways & Pub. Transp., 822 S.C. 417, 419, 472 S.E.2d 253, 254 (1996). In Anderson, the trial judge submitted the issue of general negligence and the defense of contributory negligence to the jury. The jury returned a general verdict in favor of the defendant. After the verdict, the trial court belatedly granted plaintiffs motion for a directed verdict on the issue of negligence. The court noted that it had no way to tell whether the jury returned a verdict in favor of the defendant due to the plaintiffs failure to prove negligence or the defendant’s success in proving contributory negligence. As a result, the trial court granted a new trial. The court of appeals reversed, “essentially [finding] the trial court erred by not applying the ‘two issue’ rule to uphold the jury’s verdict.” Id. at 421, 472 S.E.2d at 255. The supreme court declined to adopt “this unusual application of the ‘two issue’ rule” for the following three reasons: (1) the rule is utilized by courts on appeal, not trial courts, (2) the rule is a procedural tool for upholding, not reversing decisions, and (3) such an application would discourage trial courts from correcting errors. Id.

Like Anderson, applying the rule in this case could very well have the effect of discouraging trial courts from correcting errors. Here, the trial judge had an opportunity to correct the error by granting the Coles’ motion for a new trial. He did not do so, ostensibly because he did not believe his earlier decision to charge assumption of risk was error. However, were we to accept Respondents’ argument on the “two issue rule,” a trial judge who realizes he or she has made an error during a trial could be inclined not to correct it and to uphold the verdict. Thus, we believe this application of the rule is proscribed by the supreme court’s Anderson decision.

Furthermore, accepting the Respondents’ argument to employ the “two issue rule” to affirm the verdict *445despite an erroneous charge on the defense of assumption of risk would arguably place a heavy burden on trial lawyers to request a special verdict form in every case. Here, the Coles’ attorney objected at every available opportunity, including post-trial, to what he perceived to be an erroneous charge. It was not necessary to also request a special verdict form in order to preserve this objection.1

CONCLUSION

The trial judge erred in instructing the jury on the defense of assumption of risk, and the Coles were prejudiced by the erroneous jury instruction. As a result, the verdict is hereby reversed and the case is remanded for a new trial.

REVERSED AND REMANDED.

HUFF, J., concurs and KITTREDGE, J., dissents in a separate opinion.

. Although we do not believe a special verdict form was necessary to preserve the Coles’ objection to the charge on assumption of risk, we note that Raut had already requested a special verdict form, which was specifically rejected by the trial judge. To say that the Coles needed to also request a special verdict form to protect their objection to the jury instruction would be to require an exercise in futility. This court does not require parties to engage in futile actions in order to protect their interests on appellate review. See generally Staubes v. City of Folly Beach, 339 S.C. 406, 415, 529 S.E.2d 543, 547 (2000); Dunn v. Charleston Coca-Cola Bottling Co., 311 S.C. 43, 426 S.E.2d 756; Carter v. Peace, 229 S.C. 346, 93 S.E.2d 113 (1956).