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THE STATE OF SOUTH CAROLINA

In The Supreme Court

Vernona Belinda

Keaton, as Guardian Ad

Litem for Tony Foster,

Jr., a minor under the

age of 11, Petitioner

v.

Greenville Hospital

System, Greenville

Memorial Hospital,

Donald G. Gregg, M.D.,

Greenville Emergency

Medicine, P.A. a/k/a

Carolina Emergency

Medicine, P.A., Respondents.

AND

Vernona Belinda Keaton,

and Tony Foster, Sr., as

parents of Tony Foster, Jr.,

a minor under the age of

11, Petitioners,

v.

Donald G. Gregg, M.D.,

Greenville Emergency

Medicine, P.A., a/k/a

Carolina Emergency

Medicine, P.A.,

p.31

ON WRIT OF CERTIORARI TO THE COURT OF

APPEALS

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are on appeal from an unpublished Court of Appeals decision affirming a jury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.

FACTUAL/PROCEDURAL BACKGROUND

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").

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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.

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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.

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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

may reveal.

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.

p.35

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

erroneous?

LAW/ANALYSIS

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

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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."

p.37

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

require reversal).

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

added).

p.38

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.

(Emphasis added).

"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

p.39

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

Carolina law.

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

trial

CONCLUSION

Based on the foregoing, we AFFIRM AS MODIFIED the decision of the

Court of Appeals.

FINNEY, C.J., MOORE,.WALLER, and BURNETT, JJ., concur.

p.40