Partial retrial OK'd after jury awards $1 verdict.

Byline: David Donovan

A trial court judge properly set aside a jury verdict that awarded a medical malpractice plaintiff a single dollar in damages, but erred in entering an amended judgment awarding the plaintiff more than $500,000, a divided North Carolina Supreme Court has ruled.

The court's Dec. 21 opinion affirmed a 2017 ruling by the state's Court of Appeals and remanded the case for a new trial on the question of damages only.

Dr. Michael Rosner performed neck surgery on Pamela Justus in 2000. After the surgery, Justus complained of a severe neck pain and an inability to lift her head off her chest. After visits to different doctors failed to remedy her condition, Justus sued Rosner, alleging that he had performed unnecessary and unwarranted experimental surgeries on her and failed to fully inform her of their novelty and risks.

Justus died of unrelated causes in 2012, but her estate continued the case. At trial, several of Rosner's experts testified that Justus could have minimized her injuries by returning to Rosner for follow-up care. A Henderson County jury found that Rosner had committed negligence and Justus has suffered $512,162 in damages, but it then reduced those damages to $1 because of her "unreasonable failure to avoid or minimize her damages."

Superior Court Judge Zoro Guice granted a motion to set aside the damages verdict, saying that the jury's finding that Justus' injuries were essentially entirely her own fault was manifestly unreasonable, and the witnesses' testimony had inaccurately suggested that Justus had an obligation to return to Rosner specifically for follow-up care. Guice then awarded Justus's estate the full $512,162 in damages.

A divided Court of Appeals affirmed in part, saying that Guice had erred by entering an amended verdict rather than ordering a new trial. It remanded the case for a new trial, but only on the issue of the proper amount of Justus's damages.

In a 4-3 opinion written by Justice Robin Hudson, the Supreme Court affirmed, saying that Guice had not abused his discretion by ruling that evidence in the case was insufficient to support to jury's decision. The majority noted that Justus did seek medical care after the surgery to minimize her damages, even though she never returned to see Rosner specifically, and that the trial judge was in the best position to determine whether the jurors were improperly influenced by the expert witnesses' testimony.

"Much of the pain and suffering Pamela...