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South Carolina
Judicial Department
3902 - Cole v. Raut

In The Court of Appeals

Marty K. Cole and Tracy S. Cole, as co-administrators of the Estate of Kyle Austin Cole, and Tracy S. and Marty K. Cole, individually, Appellants,


Pratibha P. Raut, M.D., and Dr. Raut & Associates, P.A., Respondents.

Appeal From Chester County
 Paul E. Short, Jr., Circuit Court Judge

Opinion No. 3902
Heard October 12, 2004 – Filed December 6, 2004


Charles L. Henshaw, Jr., of Columbia, for Appellants.

Robert H. Hood, Hugh W. Buyck, Roy P. Maybank and Deborah Sheffield, all of Charleston, for Respondents.

KITTREDGE, J.:  In this medical negligence action, Marty and Tracy Cole appeal a general defense verdict for Dr. Pratibha P. Raut and her medical practice.  The Coles argue the circuit court erred in charging the jury on the defense of assumption of risk.  We affirm pursuant to the “two issue” rule.


The Coles brought this action individually and on behalf of their son, Kyle, who was born on February 22, 1997.  The Coles alleged medical negligence against Dr. Raut and her medical practice.  The complaint essentially asserted that Dr. Raut failed to deliver Kyle in a timely manner by Cesarean section (C-section) birth, and failed to timely respond to warning signs that Kyle was suffering from the effects of oxygen distress prior to birth.  Dr. Raut and her practice denied negligence, and asserted various defenses, including contributory negligence. 

Dr. Raut and her practice sought to amend their pleadings at trial to include assumption of risk as a separate, affirmative defense.  Initially, the court ruled that the “comparative fault affirmative defense covered assumption of the risk.”  When Dr. Raut and her practice renewed their motion, the court elected to reserve its ruling on the motion until the close of evidence.  After all evidence was presented, the court struck the comparative negligence defense raised by Dr. Raut and her practice.  However, over the Coles’ objection, the court elected to charge the jury on the affirmative defense of assumption of risk. [1]

At trial, both parties provided expert testimony regarding the various issues stemming from the care rendered by Dr. Raut in the delivery process, including Dr. Raut’s timing in ordering a C-section. [2]   Predictably, the Coles presented expert testimony that Dr. Raut deviated from the standard of care which resulted in injury, and Dr. Raut presented expert testimony that she did not deviate from the applicable standard of care while providing prenatal care to Mrs. Cole or in the delivery of her child.  A jury issue was therefore presented on the malpractice - negligence claim.

The court instructed the jury that the Coles were entitled to prevail if the jury found Dr. Raut was negligent “in at least one or more of the ways alleged … [and that] the defendants’ negligence was the proximate cause of the plaintiff’s injuries.”  When later charging the jury on the assumption of risk affirmative defense, the court stated:

I charge you, if you find that the plaintiff freely and voluntarily exposed herself to a known danger and understood and appreciated the danger, then in such circumstance your verdict would be for the defendant.  However, I charge you, on the other hand, if you find that the plaintiff’s injuries and negligence were the result of the defendant’s negligence, then in such circumstance your verdict would be for the plaintiff.

The jury returned a general defense verdict.  Judgment was entered for Dr. Raut and her medical practice.  The Coles appeal.


The Coles argue the circuit court erred in instructing the jury on the assumption of risk defense, contending the defense is inapplicable to the facts of the case.  We do not reach this issue, however, because the jury returned a general verdict for the defense, and that verdict is independently supported by the unchallenged submission of the negligence claim to the jury. [3]   This principle is generally referred to as the “two issue” rule.  The rule is based on the principle that reversal is inappropriate where no error is found as to one of the issues that may independently support the jury’s verdict.  See Anderson v. South Carolina Dep’t of Highways & Pub. Transp., 317 S.C. 280, 282, 454 S.E.2d 353, 355 (Ct.App. 1995) (“If a verdict is susceptible of two constructions, one of which will uphold it and the other which will defeat it, the one which will uphold it is preferred”).  Moreover, a general verdict is presumptively valid.  See Gold Kist, Inc. v. Citizens & Southern Nat’l Bank of South Carolina, 286 S.C. 272, 282, 333 S.E.2d 67, 73 (Ct.App. 1985) (“The appellate courts of this State exercise every reasonable presumption in favor of the validity of a general verdict”).

 Because the present case involved both an issue of negligence—properly submitted to the jury—and the challenged defense of assumption of risk, we are bound to affirm the defense verdict if the verdict may be sustained on the negligence claim.  See Id. (“[W]here a jury returns a general verdict in a case involving two or more issues or defenses and its verdict is supported as to at least one issue or defense, the verdict will not be reversed”).  The Coles concede the negligence claim involved disputed issues of fact and was properly submitted to the jury.  The general defense verdict may therefore be sustained on the negligence claim.  See Anderson, 317 S.C. at 282, 454 S.E.2d at 355 (Applying the “two-issue” rule where case submitted to jury on only one cause of action, negligence, and only one defense, contributory negligence).


Since the general defense verdict may be sustained on the negligence cause of action, the judgment of the circuit court is


HEARN, C.J., and HUFF, J., concur.

[1]  We recognize that in South Carolina the doctrine of assumption of risk was largely subsumed by the law of comparative negligence in Davenport v. Cotton Hope Plantation, 333 S.C. 71, 508 S.E.2d 565 (1998).  However, the cause of action in this present case arose in February 1997, prior to Davenport.

[2]  Mrs. Cole was admitted to the hospital on February 21, 1997.  The labor period was prolonged, and the record contains a detailed history of the labor process.  We need not discuss this factual background in light of our disposition of this appeal.

[3]  While Dr. Raut objected to the general verdict form, the Coles did not.