March 4, 2019
From Florence County William H. Seals, Jr., Circuit Court
L. Graham, of Graham Law Firm, PA, of Sumter, for Appellant.
Agnes Hood Craig, Elloree A. Ganes, Benjamin Houston Joyce,
and Deborah Harrison Sheffield, all of Hood Law Firm, LLC, of
Charleston, for Respondents.
Byrd, as next friend of Julia B., a minor, appeals a trial
court order denying her motion for a new trial and/or
judgment notwithstanding the verdict (JNOV), arguing the
trial court erred in declining to find the obstetric
emergency statute inapplicable to this case as a matter of
law. We affirm.
Byrd brought this medical malpractice action on behalf of
Julia B., her minor daughter, alleging Dr. John B. Browning,
her obstetrician, breached the standard of care in his
October 8, 2009 delivery of Julia. During the delivery, Julia
presented with shoulder dystocia when her shoulder became
stuck under her mother's pubic bone. Byrd alleges Dr.
Browning failed to properly manage and resolve Julia's
shoulder dystocia during delivery, which resulted in a
permanent brachial plexus nerve injury to Julia's right
March 12, 2013, Byrd filed a summons and complaint on
Julia's behalf against Dr. Browning and McLeod Physician
Associates, Inc. (collectively Respondents). Respondents
answered with general denials and asserted the affirmative
defense of the emergency obstetrical care exception found in
section 15-32-230 of the South Carolina Code (Supp. 2018).
Respondents later amended their answer to assert the
solicitation of charitable funds act defense. At the close of
Respondents' case, Byrd moved for a directed verdict,
arguing the obstetric emergency affirmative defense did not
apply to the case as a matter of law because
no witness has offered testimony as to the necessary
elements, which include medical instability, immediate threat
of death or harm. Neither of these two of the three elements
have been satisfied. The only testimony that has come in on
that has come in in direct contradiction of - - of
witnesses' own sworn testimony.
trial court denied Byrd's motion. The trial court charged
the jury as follows concerning section 15-32-230:
In an action involving medical malpractice - in a medical
malpractice claim arising out of care rendered in a genuine
emergency situation in an obstetrician suite where the
patient is not stable and there is an immediate threat of
death or serious bodily harm to the patient, no physician may
be held liable unless it is proven that the physician was
grossly negligent. In regards to this emergency exception,
the defendants must prove this by the preponderance or
greater weight of the evidence.
addition, the verdict form given to the jury, which neither
party objected to, provided:
1. Did the defendants prove by a greater weight or
preponderance of the evidence that the facts of this case did
arise out of a genuine emergency situation where the patient
is not medically stable and there is an immediate threat of
death or serious bodily injury?
jury answered this question in the affirmative. In addition,
the jury determined Dr. Browning was not grossly negligent.
Byrd filed a motion for a new trial absolute and/or judgment
notwithstanding the verdict, which the trial court denied in
an order dated July 11, 2016. This appeal followed.
an action at law, on appeal of a case tried by a jury, the
jurisdiction of the appellate court extends merely to the
correction of errors of law, and a factual finding by the
jury will not be disturbed unless a review of the record
discloses there is no evidence which reasonably supports the
jury's findings." Wright v. Craft, 372 S.C.
1, 18, 640 S.E.2d 486, 495 (Ct. App. 2006).
reviewing a motion for directed verdict or JNOV, an appellate
court must employ the same standard as the trial court."
Id. "Motions for directed verdict or JNOV
should be denied if the evidence yields more than one
reasonable inference or its inference is in doubt."
Allegro, Inc. v. Scully, 418 S.C. 24, 32, 791 S.E.2d
140, 144 (2016) (citations omitted). "An appellate court
will reverse the trial court's ruling only if no evidence
supports the ruling below." Id.
The denial of a motion for a new trial absolute or a new
trial nisi for excessiveness of the verdict is a matter
within the sound discretion of the trial judge. The appellate
court has no power to review his ruling unless it is wholly
unsupported by the evidence or is controlled by an error of
Soaper v. Hope Indus., Inc., 306 S.C. 531, 534, 413
S.E.2d 38, 40 (Ct. App. 1992), aff'd as
modified, 309 S.C. 438, 424 S.E.2d 493 (1992) (citations
argues the trial court erred in not finding the obstetric
emergency exception is inapplicable to this case as a matter
of law. The obstetric emergency exception is contained in
section 15-32-230 of ...