Fairchild v. South Carolina Department of Transportation (Lawyers Weekly No. 010-033-12, 12 pp.) (Donald W. Beatty, J.) Appealed from Colleton County Circuit Court. (Perry M. Buckner, J.) On writ of certiorari to the Court of Appeals. S.C. S. Ct. Click here for the full-text opinion.
Holding: Plaintiff made a “reasonable objection” to the doctor whom defendant proposed to conduct an independent medical examination of her, i.e., the doctor was an expert for the defense who had already reviewed plaintiff’s medical records and the deposition testimony of potential witnesses.
We affirm the Court of Appeals’ decision which (1) affirmed the trial court’s denial of defendant’s motion for an independent medical examination (IME) of plaintiff by defendant’s expert witness, (2) reversed the trial court’s refusal to submit the issue of punitive damages to the jury, and (3) reversed the trial court’s refusal to instruct the jury on the intervening negligence of a treating physician.
Plaintiff had to brake quickly to avoid a collision on I-95. Although defendant attempted to avoid a collision, his heavy truck struck plaintiff’s minivan, causing the minivan to flip over and roll before landing in the median.
Punitive Damages
S.C. Code Ann. § 56-5-1520(A) requires a driver to control his speed “to avoid colliding with a person, vehicle, or other conveyance on or entering the highway in compliance with legal requirements and the duty of a person to use care.” In addition, S.C. Code Ann. § 56-5-1930(a) prohibits following too closely.
The violation of a statute constitutes negligence per se, and negligence per se is some evidence of recklessness and willfulness that requires submission of the issue of punitive damages to the jury.
Viewing the evidence and its reasonable inferences in the light most favorable to plaintiff, there is evidence to create a jury question as to whether or not defendant acted with recklessness, thus requiring submission of the issue of punitive damages to the jury.
Defendant was driving a commercial-sized truck, towing a 28-foot trailer, and hauling a motorcycle, and his combined weight exceeded eight and one-half tons. Defendant knew he was approaching an area of merging traffic and possible congestion on I-95 near several rest areas, and he knew of the need to maintain a safe stopping distance for such a large vehicle.
Defendant acknowledged that he maintained a “pretty steady speed” of 65 to 70 mph to avoid “giving distance” that would let other vehicles cross into his lane ahead of him. He also stated he was “maybe a hundred feet or more” behind plaintiff when she first applied her brakes.
There is evidence that defendant might have violated §§ 56-5-1520(A) and 56-5-1930(a), and there is an inference that the violations of these statutes were the proximate cause of the accident. Therefore, plaintiff’s claim for punitive damages should have been submitted to the jury.
Intervening Negligence
Defendant implied that overmedication, rather than his own negligence, was the source of many of plaintiff’s ailments.
Plaintiff requested a jury charge as to the intervening negligence of a treating physician: “It is the general rule that if an injured person uses ordinary care in selecting a physician for treatment of his injury, the law regards the aggravation of the injury resulting from the negligent act of the doctor as part of the immediate and direct damages which naturally flow from the original injury.” The trial court denied her request.
The charge requested by plaintiff was necessary to allow the jury to properly evaluate proximate cause and resulting damages, and its omission resulted in prejudice to plaintiff. There was an abundance of testimony elicited by defendant on the allegation that overmedication by plaintiff’s physicians was a possible cause of many of plaintiff’s ailments. Defendant’s message throughout the trial was that he should not be held responsible for any symptoms that might have been caused by or exacerbated by overmedication or the treatment of plaintiff’s physicians.
Where plaintiff’s treatment and medical condition were the focus of so much of the testimony, the charge should have been given to avoid confusion for the jury and to aid it in properly evaluating proximate cause and damages. The failure to give the requested charge was error warranting reversal.
IME
Rule 35(a), SCRCP, provides for an IME of a party whose medical condition is at issue. There are no S.C. decisions specifically addressing the provision for a “reasonable objection” under Rule 35(a), SCRCP: “Upon reasonable objection to the physician designated to make the examination, and if the parties shall fail to agree as to who shall make the examination, the court may designate a physician; but the fact that a physician was so designated shall not be admissible upon the trial.”
Under the plain language of Rule 35(a), the defendant clearly does not have the right to unilaterally select the examining physician; rather, the court alone has the right to make the appointment. The rule contemplates that the parties will confer on this point to make suggestions, but where a “reasonable objection” has been interposed and the parties cannot agree, the court will make the selection.
A “reasonable objection” in this context simply means the reason for the objection must not be frivolous. What is reasonable will depend on the facts and circumstances of the case, which is precisely why the determination of this matter is best left to the sound discretion of the trial court.
The purpose of the rule for an IME is to materially aid the jury, not just the defendant, in evaluating the actual damages sustained and arriving at a just verdict. Thus, the better rule is that the physician should not be affiliated with either party in order to serve the purposes of Rule 35.
The finding of the trial court that plaintiff had interposed a reasonable objection to Dr. Ballard’s designation as the examining physician was a proper exercise of the trial court’s inherent discretion to rule on discovery matters and is amply supported by the record. Dr. Ballenger was retained as a defense witness and had reviewed not only plaintiff’s medical records, but also the deposition testimony of other potential witnesses, and it was alleged that he had already formed adverse opinions regarding plaintiff’s injuries before the IME was requested. Under these circumstances, defendant has shown no abuse of discretion.
Affirmed.