Alston v. Britthaven, Inc., 628 S.E.2d 824 (N.C. Ct. App. 2006)

“Plaintiff presented expert medical testimony that the cause of Mr. Alston’s death was septicemia, or an infection which entered into his bloodstream. Plaintiff argued the cause of the infection was the pressure sores which defendant negligently failed to prevent. Defendant presented conflicting expert medical testimony that the cause of death was Alzheimer’s dementia, a terminal illness.” The trial judge refused to let the jury consider pain and suffering prior to death and only submitted the wrongful death claim to the jury. After a defense verdict was returned and motion for new trial was denied, Plaintiff appealed. On appeal, the court found that Plaintiff properly pled a survivorship claim and presented substantial evidence at trial to allow a jury to conclude the Defendants negligently allowed resident to develop pressure sores and that they caused pain and suffering prior to death. Because the jury never determined whether Defendants’ negligence caused pre-death injuries even though the pleadings and evidence at trial would have allowed them to do so, Plaintiff was granted a new trial.