THE STATE OF SOUTH CAROLINA
In The Supreme Court
Keaton, as Guardian Ad
Litem for Tony Foster,
Jr., a minor under the
age of 11, Petitioner
Donald G. Gregg, M.D.,
Medicine, P.A. a/k/a
Medicine, P.A., Respondents.
Vernona Belinda Keaton,
and Tony Foster, Sr., as
parents of Tony Foster, Jr.,
a minor under the age of
Donald G. Gregg, M.D.,
Medicine, P.A., a/k/a
ON WRIT OF CERTIORARI TO THE COURT OF
Appeal From Greenville County
Larry R. Patterson, Circuit Court Judge
Opinion No. 24912
Heard December 15, 1998 - Filed March 1, 1999
AFFIRMED AS MODIFIED
Fletcher N. Smith, Jr., of Greenville, for petitioners.
G. Dewey Oxner, Jr. and Sally McMillan Purnell,
both of Haynsworth, Marion, McKay & Guerard, of
Greenville, for respondents Greenville Memorial
Hospital and Greenville Hospital System.
Gregory A. Morton, Ashby W. Davis and Steven
Snyder, all of Donnan, Morton & Davis, P.A., of
Greenville, for respondent Dr. Donald G. Gregg,
TOAL, A.J.: These three consolidated medical malpractice actions
are on appeal from an unpublished Court of Appeals decision affirming a jury
verdict for the defense. Petitioners claim the Court of Appeals wrongly found
an objection to a jury charge was not preserved for appellate review. We agree.
Petitioners further argue that they are entitled to a new trial because the jury
charge was erroneous. We disagree and find that no new trial is necessary.
Verona Keaton, the mother and guardian ad litem for her son Tony
Foster, Jr., ("Patient"), sued the Greenville Hospital System, Greenville
Memorial Hospital, the emergency room physician Dr. Donald Gregg, Greenville
Emergency Medicine, and Carolina Emergency Medicine ("the Defendants").
Patient's suit claimed the Defendants negligently caused him permanent brain
damage by failing to diagnose and treat his hydrocephalic condition in a timely
manner. Both parents of Patient instituted claims against the Defendants
based on the same incident. The trial court dismissed the parents' claims
against the hospital because the South Carolina Tort Claims Act's two year
statute of limitations had passed.1
On January 7, 1992, Verona Keaton brought her son to the Greenville
Memorial Hospital emergency room. Patient had been experiencing vomiting,
dizziness, and diarrhea. They entered the hospital at 2:45 p.m. and by 2:51
p.m. Patient was in an emergency room bed. Dr. Gregg saw Patient at 3:00 p.m.
and performed a neurological examination. At this time Dr. Gregg took
Patient's history, performed a physical examination, and ordered certain tests
including a CT Scan. A CT scan is the only test that reveals the presence of
hydrocephalus. In this initial examination Dr. Gregg determined Patient was
not suffering from any neurological defect. Dr. Gregg diagnosed him as
probably dehydrated and instructed that Patient receive intravenous fluids.
During the next hour, Patient's condition did not improve. At 3:50 p.m.,
Dr. Gregg determined that Patient was suffering from an altered mental state
and requested support. After completing more tests, at 4:49 p.m. Patient was
taken to the CT scan. The CT scan immediately revealed Patient's
hydrocephalus and the doctor requested a neurological consultation. At 5:10
p.m., Patient's pulse stopped. A doctor began mouth to mouth resuscitation and
intubated Patient so that oxygen could flow. At 5:22 p.m. a neurosurgeon
arrived and, based on the CT Scan results, inserted a needle into Patient's head
to relieve the cranial pressure.
Hydrocephalus is a condition in which the ventricles in the brain become
blocked. The blockage prevents the spinal fluid from adequately circulating
through the brain and returning to the bloodstream. This blockage results in
swelling and pressure within the cranium. Patient claims the doctors could
have reduced the pressure caused by the water on his brain if they had given
him oxygen and the drug Mannitol. Patient also believes that he should have
received 100% oxygen before going to the CT Scan.
Following this episode, Patient suffered severe neurological damage.
those of Patient.
After a tracheostomy and a gastrostomy, Patient has remained in a vegetative
state. He has remained in a chronic care facility since February 2, 1993.
Patient sued the Defendants, alleging negligence. Prior to the jury being
charged, the Defendants submitted a request for a jury charge stating the
actions of the medical providers were to be judged in light of the circumstances
then and there existing, and not in hindsight. Patient made no objection to this
request to charge prior to the initial charging of the jury. However, the trial
judge inadvertently omitted this hindsight charge when charging the jury.
The Defendants promptly objected to the trial court's omission. The trial
court responded to the omission by stating: "How I missed that is beyond me.
No, I have to charge that, I agree." Patient then objected to the charge being
given at all to the jury.' Patient claimed that the hindsight charge was not
proper in a medical malpractice case. Patient stated his objection as:
Your Honor, my problem with the hindsight charge is that
basically any records review by a medical expert is a review
technically in hindsight which would, in effect, obviate the need for
having any medical malpractice law whatsoever because if the
patient in a situation with giving medical records to another expert
witness to review them, there's no way for that medical physician
to be on the scene in the operating room, or in the emergency room,
at the exact time that it happened unless they could go back in time
something like on Star Trek. So, therefore, the hindsight argument,
is really a red herring, which really undercuts a patient's right to
receive adequate justice in a medical malpractice case. And I would
argue, your honor, that it would be a violation of due process
because what it does, in effect, is that it -- it's a violation of equal
protection and due process in a sense because no other people in
terms of automobiles, and things of that nature, have to have a
charge that hindsight in terms of someone driving down the
highway, if they hadn't run a stop sign wouldn't have caused a
wreck. And a medical negligence case is simply the same thing as
an automobile accident to that extent. The doctor ran a medical red
light. And other people giving opinions with regard to whether or
not he violated the standard of care, which was generally
recognized by physicians who are similarly situated practicing on
a national level.
The judge disagreed with Patient and called the jury back in to be recharged.
The recharging went as follows:
All right, ladies and gentlemen, sometimes in covering the
charges I may omit something, and sometimes I don't. But just
because I give you another charge, this does not have any more
meaning than anything else I told you, okay. It just goes along
with everything else that I have charged you.
Now I have told you that in considering a medical malpractice
case, you and I don't know what the standards are, and you have
to determine the facts and circumstances that existed on the date
and time in question when this child was brought into the
emergency room. And in evaluating, determining what the
standard of care is', you have to have expert testimony as to what
the doctor, the hospital, the residents, and the nurses should or
should not have done based on those circumstances. In giving their
opinions, the experts must review the records at the time of the
incident. In considering whether a physician, a resident, or nurse
has exercised reasonable judgment in a given case, you must
consider such judgment in relation to the facts as they existed at
the time the judgment was made, and not in light of what hindsight
After the recharging of the jury, the judge specifically asked if there were any
further objections. Counsel for Patient replied, "None, your honor."
On November 21, 1995, the jury returned a complete defense verdict
exonerating Dr. Gregg and the rest of the Defendants. The trial judge heard
post-trial motions on December 7, 1995. Although none of Patient's written
post-trial motions challenged the hindsight charge, Patient raised this issue in
the post-trial hearing. The trial judge ruled from the bench denying all of
Plaintiff s motions, including the one concerning the hindsight charge. Patient
then filed a Notice of Appeal from the jury verdict.
In an unpublished decision, the Court of Appeals stated: "Plaintiffs also
argue the trial court erred in instructing the jury that a physician may not be
judged in light of what hindsight may reveal. Insofar as the plaintiffs failed to
object to the language of the charge after it was given, this issue is not
preserved for appellate review. State v. Johnson, 315 S.C. 485, 445 S.E.2d 637
(1994)." Keaton v. Greenville Hospital System, Opinion No. 97-UP-379 (Ct. App.
June 23, 1997, revised August 28, 1997) (emphasis added).
This Court granted Patient's petition for a writ of certiorari to consider
the following issues:
(1) Was the objection to the jury charge preserved?
(2) If the objection was preserved, was the hindsight charge
I. PRESERVATION OF THE OBJECTION
Patient argues the Court of Appeals erred in finding his objection to the
jury charge unpreserved. We agree.
A clear understanding of the events that occurred during the jury
charging process is important to the resolution of this case. Prior to the initial
jury charge reading to the jury, Patient did not object to the hindsight jury
charge. The court then instructed the jury, accidentally omitting the hindsight
charge. The judge sent the jury out of the courtroom but instructed them not
to deliberate the case. The Defendants objected to the trial court's omission of
the hindsight charge. The trial court agreed with the Defendants that the
hindsight charge should have been read. Patient then objected to the jury
charge for the first time. Patient gave an explanation of his objection to the
charge. The trial court overruled the objection and brought the jury back into
the courtroom and read the omitted charge. The jury then left to deliberate the
case and Patient did not renew his objection.
Patient's on the record explanation of his objection to the hindsight jury
charge along with the trial judge's ruling on that issue is sufficient to preserve
the objection for appeal. The objection is preserved despite Patient not
objecting to the charge after it was read to the jury. Our recent decision of State
v. Johnson, Op. No. 24851 (S.C. Sup. Ct. filed Nov. 9, 1988) (Shearouse Adv. Sh.
No. 35 at 23, n. 1), observed that the majority and dissenting opinions in State
v. Whipple, 324 S.C. 43, 476 S.E.2d 683 (1985), were "being read to hold that
where a party's jury charge objections or requests are denied on-the-record after
a pre-charge conference, the party must renew those objections or requests
subsequent to the courts instructions to the jury. The majority opinion in
Whipple, however, did not establish such a rule." Id. Johnson clarified the
confusion in Whipple by stating, "where a party requests a jury charge and,
after opportunity for discussion, the trial judge declines the charge, it is
unnecessary, to preserve the point on appeal, to renew the request at [the]
conclusion of the court's instructions." Id. The authority relied on by the Court
of Appeals does not stand for the proposition that Patient had to object after the
jury charge was read to preserve the objection for review on appeal.2 Like the
petitioner in Johnson, Patient objected on the record and the trial judge
specifically ruled on the objection.
One distinction between Johnson and the instant case is that Johnson
was a criminal matter and the current case involves a civil dispute. However,
Rule 20(b), SCRimP, is the criminal procedure equivalent to Rule 51, SCRCP
at issue in the current case. The Reporter's Notes state: "[Rule 20, SCRimP] .
. . As taken from Rule 51, SCRCP . . ." Reporter's Notes, Rule 20, SCRimP. The
two rules are similar and encompass similar policy goals.3 As in Johnson, there
was an opportunity for discussion on the record and the trial judge specifically
ruled on the jury charge. Patient's objection satisfied Rule 51's purpose of
S.C. 485, 445 S.E.2d 637 (1994) for the proposition: "Insofar as the plaintiffs
failed to object to the language of the charge after it was given, this issue is not
preserved for appellate review." That case does not stand for this proposition;
it simply holds that the complete failure to object to a jury charge prevents
review on appeal.
3 The operative language of Rule 20, SCRimP states:
"[T]he parties shall be given the opportunity to object to the giving or failure to
give an instruction before the jury retires, but out of the hearing of the jury.
Any objection shall state distinctly the matter objected to and the grounds for
objection. Failure to object in accordance with this rule shall constitute a
waiver of objection."
Rule 51, SCRCP's operative language reads:
"No party may assign as error the giving or the failure to give an instruction
unless he objects thereto before the jury retires to consider its verdict, stating
distinctly the matter to which he objects and the grounds for his objection.
Opportunity shall be given to make the objection out of the hearing of the jury."
ensuring that the parties have given the trial judge a chance to resolve disputed
issues relating to jury instructions.
H. PROPRIETY OF THE HINDSIGHT CHARGE
Patient argues the hindsight jury charge as given constitutes error
warranting a new trial. We disagree.
Even though Patient preserved his argument for appeal, we believe a
remand is unnecessary because the judge adequately charged the jury in
respect to the law of medical malpractice in South Carolina. A jury charge is
correct if "[w]hen the charge is read as a whole, it contains the correct definition
and adequately covers the law." State v. Johnson, 315 S.C. 485, 487, 445 S.E.2d
637, 638 n.1 (1994) (citing State v. Hoffman, 312 S.C. 386, 440 S.E.2d 869
(1994)); see also State v. Rabon, 275 S.C. 459, 272 S.E.2d 634 (1980) (holding
that a jury charge which is substantially correct and covers the law does not
In King v. Williams, 276 S.C. 478, 279 S.E.2d 618, 620 (1981), this Court
put forth the standard of care for a medical practitioner. This Court held: "The
degree of care which must be observed is, of course, that of an average,
competent practitioner acting in the same or similar circumstances." King, at
482) 279 S.E.2d at 620 (emphasis added). Since the King decision, our Court of
Appeals has defined medical malpractice as "the failure of a physician to
exercise that degree of care and skill which is ordinarily employed by the
profession generally, under similar conditions and in like surrounding
circumstances," Jernigan v. King, 312 S.C. 331, 333, 440 S.E.2d 379, 381 (Ct.
App. 1993) (emphasis added). The standard for recovery has been summarized,
"To recover for medical malpractice, a plaintiff must show failure by a physician
to exercise that degree of care and skill which is ordinarily employed by the
profession under similar conditions and in like circumstances," Bonaparte v.
Floyd, 291 S.C. 427,354 S.E.2d 40, 45 (Ct. App. 1987) (citing Welch v. Whitaker,
282 S.C. 251, 317 S.E.2d 758 (Ct. App. 1984) (emphasis added). In addressing
the issue of hindsight in medical actions, the Court of Appeals has stated: "The
physician's chief concern when treating a patient should be the patient's best
interests and not what a lay jury, untrained in medicine and employing perfect
hindsight, might later conclude he or she should have disclosed." Hook v.
Rothstein, 281 S.C. 541, 553, 316 S.E.2d 690, 697-98 (Ct. App. 1984) (emphasis
Even though the jury charge in the present case was not a word for word
quotation of previous case law, we believe that the charge adequately covered
the law of South Carolina medical malpractice. "The substance of the law is
what must be instructed to the jury, not any particular verbiage." State v.
Smith, 315 S.C. 547,554,446 S.E.2d 411) 415 (1994). The contested part of the
hindsight jury charge states: "In considering whether a physician, a resident,
or nurse has exercised reasonable judgment in a given case, you must consider
such judgment in relation to the facts as they existed at the time the judgment
was made, and not in light of what hindsight may reveal." Patient opposed the
hindsight charge at trial by saying, "my problem with the hindsight charge is
that basically any records review by a medical expert is a review technically in
hindsight." Since his experts gained their knowledge from records reviews,
Patient was concerned that the charge gave the impression that in order to
testify as an expert, the doctor had to be in the emergency room.
We believe that Patient's argument is not supported by a reasonable
interpretation of this jury charge. A common theme in the area of medical
malpractice is that the jury must look at the doctor's actions "under similar
conditions and in like circumstances." The hindsight jury charge in this case
merely elucidated the meanings of "similar circumstances" and "like conditions."
The jury charge did not restrict record reviews as Patient claims. The trial
judge even instructed the jurors that:
[Y]ou and I don't know what the standards are, and you have to
determine the facts and circumstances that existed on the date and
time in question when this child was brought into the emergency
room. And in evaluating, determining what the standard of care is,
you have to have expert testimony as to what the doctor, the
hospital, the residents, and the nurses should or should not have
done based on those circumstances. In giving their opinions, the
experts must review the records at the time of the incident.
"In reviewing jury charges for error, we must consider the court's jury charge
as a whole in light of the evidence and issues presented at trial. If, as a whole,
the charges are reasonably free from error, isolated portions which might be
misleading do not constitute reversible error." Bragg v. Hi-Ranger, Inc., 319
S.C. 531, 462 S.E.2d 321, 330 (Ct. App. 1995) (citing Manning v. Dial, 271 S.C.
79) 245 S.E.2d 120 (1978); Dickard v. Merritt, 256 S.C. 458, 182 S.E.2d 886
(1971); State v. Barksdale, 3 11 S.C. 210, 428 S.E.2d 498 (Ct. App. 1993)). When
viewing the challenged portion of the jury charge "as a whole" with the rest of
the judge's instruction, we believe the trial court adequately charged South
Even if this Court assumed the hindsight charge was confusing, any effect
that resulted from this charge does not warrant reversal.
[Al confusing charge alone is insufficient to warrant reversal. State
v. Jefferies, 316 S.C. 131 446 S.E.2d 427 (1994). Jury instructions
must be considered as a whole, and if, as a whole, they are
reasonably free from error, isolated portions which might be
misleading do not constitute reversible error. State v. Barksdale,
311 S.C. 210) 428 S.E.2d 498 (Ct. App. 1993). When reviewing a
trial judge's instruction for error, this court must consider the
instructions in their entirety. State v. Andrews, 324 S.C. 516) 479
S.E.2d 808 (Ct. App. 1996). In order to find the error harmless, we
must determine beyond a reasonable doubt that the error
complained of did not contribute to the verdict. Id.
State v. Kerr, 330 S.C. 132, 498 S.E.2d 2121 218 (Ct. App. 1998). We therefore
find that, as a whole, the jury charge was adequate and does not require a new
Based on the foregoing, we AFFIRM AS MODIFIED the decision of the
Court of Appeals.
FINNEY, C.J., MOORE,.WALLER, and BURNETT, JJ., concur.