Case Law Update
Article Date: Wednesday, May 18, 2011
Written By: Susan Hackney & Amy Mackin
North Carolina Court of Appeals
Alston v. Granville Health System et al., 2010 WL 3633738, No. COA09-1540 (N.C. Ct. App. Sept. 21, 2010) (unpublished)1
Facts: On Nov. 9, 2003, the plaintiff’s wife fell off a gurney while unconscious in the operating room of the defendant hospital. As a result of the fall, she sustained broken bones and a contusion to the back of her head. The plaintiff alleged that his wife was permanently injured as a result of the fall, never walked again, and died four years later “during her prolonged injuries.” The plaintiff brought this action on behalf of his wife’s estate against the hospital, its board, and the surgeon under the doctrine of res ipsa loquitur. The trial court granted all the defendants’ motions to dismiss for failure to state a claim, and the plaintiff appealed.
Analysis: The Court of Appeals (the court) reversed, holding that the plaintiff had sufficiently alleged a cause of action against the defendants. The court stated that doctrine of res ipsa loquitur applies when (1) direct proof of the cause of an injury is not available, (2) the instrumentality involved in the accident was under the defendant’s control, and (3) the injury is of a type that would not ordinarily occur in the absence of negligence. In this case, the complaint alleged that the decedent fell off the gurney for unknown reasons while the decedent and the gurney were under the defendants’ control. The court also concluded that because a layperson could reasonably draw an inference of negligence based upon the fact of the fall itself, res ipsa loquitur could be properly relied upon in this case.
The court distinguished Grigg v. Lester, 102 N.C. App. 332, 401 S.E.2d 657 (1991), which had held the doctrine inapplicable in a medical malpractice case where a layperson could not reasonably infer negligence from the plaintiff’s medical injuries. In Grigg, the plaintiff had been injured during a Cesarean section, but the court held that it was not sufficiently obvious to a layperson that the injuries could only have been caused by negligence, and therefore res ipsa loquitur could not be applied. In Alston, however, the court concluded that a layperson could reasonably infer that the plaintiff would not have fallen off the gurney in the absence of negligence. Furthermore, because the action was one for ordinary negligence rather than medical malpractice, no expert opinion was required, and the plaintiff’s complaint met the notice pleading standards. Therefore, because the court held that the complaint sufficiently stated a claim, it reversed the order of dismissal and reinstated the plaintiff’s claim.
Munn v. Haymount Rehabilitation & Nursing Center, Inc. et al., ___ N.C. App. ___, 704 S.E.2d 290
(Dec. 21, 2010)
Facts: Plaintiff, in her capacity as Administratrix of the Estate, filed a wrongful death action arising from the care administered to the decedent, plaintiff’s adult daughter. At the time of the decedent’s admission to defendant nursing home, plaintiff signed the Admission Agreement as the Responsible Party despite the fact that plaintiff’s daughter was married. The term “Responsible Party” indicated that plaintiff was responsible for payment of her daughter’s nursing home care. However, the Admission Agreement also included an arbitration provision, requiring that all disputes, other than collection of payment, be arbitrated. Defendants filed a motion to compel arbitration. The trial court denied defendants’ motion and granted plaintiff’s motion to dismiss defendant’s claim for arbitration. Defendant appealed.
Analysis: The Court of Appeals (the court) affirmed, concluding that plaintiff was not decedent’s actual or apparent agent and thus, could not consent to arbitration. Defendants argued that plaintiff was the actual agent of the decedent. However, to establish the actual agency relationship, there must be evidence of consent to the agency relationship. Phillips v. Rest. Mgmt. of Carolina, L.P., 146 N.C. App. 203, 217, 552 S.E.2d 686, 695 (2001). At the time of her admission to the nursing home, decedent was unable to communicate. Although defendants presented evidence that decedent had identified her mother as her next of kin and allowed her mother to make healthcare decisions for her prior to her admission to the nursing home, there was no evidence demonstrating that decedent consented to her mother acting as an agent on her behalf.
Defendants also asserted that plaintiff was decedent’s apparent agent. Apparent authority “is determined not by the agent’s own representations but by the manifestations of authority which the principal accords to h[er].” McGarity v. Craighill, Rendleman, Ingle & Blythe, P.A., 83 N.C. App. 106, 109, 349 S.E.2d 311, 313 (1986). The evidence indicated that plaintiff made decisions regarding her daughter’s care, but defendants failed to demonstrate that plaintiff had been authorized by her daughter to act as her daughter’s agent. The court also determined that defendants could not have reasonably relied on any representation that plaintiff was her daughter’s agent because nothing indicated that decedent consented to her mother acting as her agent. Accordingly, the court affirmed the trial court’s order denying defendants’ motion to compel arbitration and dismissing defendants’ claim for arbitration.
Perry v. Presbyterian Hospital et al., ___ N.C. App. ___, 703 S.E.2d 850 (Jan. 4, 2011)
Facts: In August of 2006, the plaintiff underwent surgery on the mitral valve of his heart. The surgery lasted much longer than expected, and the plaintiff’s leg was cannulated (made to have reduced blood flow) for approximately nine hours. The plaintiff was in poor condition after the surgery and was sedated and unable to speak for several days. During that time, his wife believed he was trying to communicate something about his leg. The family mentioned their concerns about the color and hardness of his leg to a nurse, who allegedly told them that the plaintiff was experiencing a normal reaction to heart surgery. Three days after the surgery, however, another nurse noted that the plaintiff had no pulse in his right foot, leading to a diagnosis of compartment syndrome and the need for immediate surgery. Because much of the muscle and nerve tissue in the plaintiff’s leg had already died by that time, though, he was left permanently disfigured, with no feeling in his right foot and difficulty walking.
The plaintiff sued the surgeon, the surgeon’s practice, and the hospital for negligence. With regard to the hospital, the complaint alleged that the hospital had failed to ensure that its agents would properly monitor the plaintiff’s condition after surgery and that the hospital’s agents had failed to detect and act on his symptoms of compartment syndrome before the damage became irreversible. The plaintiff alleged that the employed nurses were agents of the hospital, as was the surgeon, who was an independent contractor. The hospital filed a motion for summary judgment, which the trial court granted on the grounds that the plaintiff had not presented sufficient evidence of causation. The plaintiff appealed, and his case against the surgeon and the practice was stayed pending the outcome of the appeal.
Analysis: The Court of Appeals (the court) reversed and remanded, holding that a genuine issue of material fact remained as to whether the hospital’s agents had proximately caused the plaintiff’s injuries. Despite the fact that none of the plaintiff’s experts could say exactly how much of the plaintiff’s harm could have been averted if his condition had been noticed earlier, they all testified that compartment syndrome is progressive in nature such that earlier intervention would have made some degree of difference. Although the court concluded that the plaintiff had presented sufficient evidence supporting his claim against the surgeon, this alleged negligence could not be imputed to the hospital. In order to show agency, the plaintiff had to demonstrate that the hospital controlled both the means and the details of the process by which the surgeon performed his work, and there was inadequate evidence supporting such a claim in this case. The court went on to conclude, however, that the plaintiff had presented enough evidence to state a claim against the hospital based on the acts of its employed nurses. Even though one of the plaintiff’s nursing experts provided conflicting testimony on the issue of causation, the court ruled that it was inappropriate to award summary judgment based on this inconsistency, which the court believed was a matter of credibility for the fact-finder to consider. The court therefore reversed the granting of summary judgment and remanded for further proceedings.
Cousart v. Charlotte-Mecklenburg Hospital Authority et al., ___ N.C. App. ___, 704 S.E.2d 540 (Jan. 18, 2011)
Facts: In September of 2003, the plaintiff mother was admitted to the defendant hospital in labor with her baby girl. The delivery was difficult, however, and the obstetrician allegedly used pressure and vacuum suction to attempt to deliver the baby. When the baby became stuck in the birth canal, the obstetrician had to pull and rotate her in order to get her out. The baby sustained a brachial plexus/shoulder dystocia injury to her right arm that will allegedly require additional medical treatment throughout her life. The plaintiffs (parents and child) filed suit against the hospital, as well as the physician’s practice and employer, alleging four counts of medical negligence and a loss of consortium claim that was later abandoned. The trial court granted summary judgment in favor of the defendants, and the plaintiffs appealed.
Analysis: The Court of Appeals (the court) affirmed, holding that there was inadequate evidence of proximate causation to create a genuine issue of material fact in this case. During the deposition of the plaintiffs’ expert, the expert testified that he could not say to a reasonable degree of medical certainty whether the pressure applied during labor caused the baby’s injuries. In a subsequent affidavit, however, the expert stated that after his deposition, the attorney had explained to him the legal standard for proximate causation. Specifically, the expert sought to clarify that he considered the force applied during labor to be a contributing cause, if not the sole cause, of the child’s injuries. The court held that the affidavit, which directly contradicted the sworn testimony given at the deposition, could not be considered. Citing Rohrbough v. Wyeth Labs, Inc., 916 F.2d 970, 975 (4th Cir. 1990), the court concluded that “a genuine issue of material fact is not created where the only issue of fact is to determine which of the two conflicting versions of the plaintiff’s testimony is correct.” With the affidavit excluded, the court determined that the plaintiffs had submitted no sufficiently reliable evidence of proximate causation, and therefore the defendants’ motion for summary judgment had been properly granted.
McCrann v. N.C. Dept. of Health and Human Services, Division of Mental Health, Developmental Disabilities and Substance Abuse Services, ___ N.C. App. ___, 704 S.E.2d 899 (Jan. 18, 2011)
Facts: Jonathan McCrann is a 28-year-old with several disabilities, including mental retardation, autism, cerebral palsy, and blindness. Through a Medicaid-funded program, the Community Alternatives Program for Persons with Mental Retardation and Other Developmental Disabilities (“CAP Program”), Jonathan had been provided one-on-one services by a personal caregiver who assisted him with daily functions. These services had been paid by the federal Medicaid program, in conjunction with the State, through a “waiver” program. In 2005, the N.C. Department of Health and Human Services (“DHHS”) revised the waiver and subsequently determined that Jonathan’s services were no longer covered, because under the revised waiver third party providers could not provide services to persons residing in a group home.
Jonathan’s parents filed a contested case petition in the Office of Administrative Hearings. The Administrative Law Judge (“ALJ”) held that the denial of Jonathan’s benefits by DHHS was arbitrary and capricious and erroneous as a matter of law. DHHS’s Final Agency Decision overturned the ALJ’s decision. The McCranns then filed a Petition for Judicial Review in superior court, and the superior court judge reversed the denial of Jonathan’s benefits but denied reimbursement for the services Jonathan’s parents paid for out-of-pocket. DHHS appealed to the Court of Appeals (the court).
Analysis: The court upheld the superior court’s order reversing the denial of benefits and remanded the case to superior court for an evidentiary hearing to determine the amount of reimbursement owed to Jonathan’s parents. The court held that the waiver provision was an administrative rule that had not been promulgated in accordance with the Administrative Procedure Act (“APA”). A provision that creates a binding standard interpreting eligibility under Medicaid law is a rule. Dillingham v. N.C. Dept. of Human Resources, 132 N.C. . 704, 513 S.E.2d 823 (1999). The 2005 waiver revision interpreted Medicaid eligibility, and thus, was a rule that had not been promulgated pursuant to APA requirements. The court also determined that the federal corrective payment regulation, 42 C.F.R. § 431.246 (2009), required reimbursement of the payments made to Jonathan’s caregiver by his parents during the appeal. Although the “vendor payment principle” usually requires payment to be made directly to the provider, in this case the provider had already been paid. Therefore, only Jonathan’s parents required reimbursement, and the court remanded for proceedings to determine the amount of such reimbursement.
Davis v. Rudisill et al., ___ N.C. App. ___, ___ S.E.2d ___, No. COA10-687 (Feb. 15, 2011)
Facts: The plaintiff filed this medical malpractice action against his family physician and the physician’s practice for allegedly failing to provide proper treatment to the plaintiff several days before he was taken by ambulance to the hospital for a heart attack and a stroke. Ruling on the defendants’ motion in limine, the trial court excluded evidence of the physician’s prior discipline by the N.C. Medical Board (the “Board”) on the grounds that it would cause unfair prejudice. The trial court also allowed the defendants to amend their answer during trial in order to correct the date of one of the plaintiff’s visits to the physician’s office. Although the plaintiff argued that the original answer constituted a binding judicial admission, the judge instead instructed the jury that the statement was not binding and could be explained or controverted by other evidence. A jury then found the defendants not liable for medical malpractice, and the trial court subsequently denied the plaintiff’s motion for a new trial and awarded costs to the defendants. The plaintiff appealed the judgment and both orders.
Analysis: The Court of Appeals (the court) affirmed the trial court’s rulings. In regard to the defendants being allowed to amend their answer during trial, the plaintiff had the burden of showing that he was substantially prejudiced by the granting of the motion to amend. The court emphasized, however, that the amendment in this case merely reflected the defendants’ other evidence about what days the physician’s office had been open during the week in question, and the plaintiff was therefore on notice about the error in the answer. Furthermore, the trial judge had allowed the plaintiff to read the unamended statement to the jury in an attempt to support his argument that the medical record had been falsified. The court therefore held that the plaintiff had not been materially prejudiced, and the trial court had not abused its discretion in allowing the defendants to amend their answer during trial.
Reviewing the motion in limine on an abuse of discretion standard as well, the court concluded that the evidence of the physician’s prior discipline by the Board was properly excluded. The evidence in question involved two Board determinations from 1985 and 1992 that the physician had improperly prescribed controlled substances, with the later incident involving falsification of patient records. The trial judge had concluded that the prior acts were so remote in time from the case at bar that the danger of unfair prejudice substantially outweighed the probative value of the evidence. The court agreed with this reasoning, emphasizing that this case hinged on witness credibility, so evidence that the physician had falsified medical records in a different context could mislead the jury. Therefore, finding no error in the trial court’s rulings, the court affirmed the judgment and the orders in favor of the defendants.
Hackney and Mackin are members of the health care team of K&L Gates LLP.
1. An unpublished decision of the North Carolina Court of Appeals does not constitute controlling legal authority. For the standard of review regarding when it may be cited as precedential value, see N.C. R. App. P. 30(e)(3).
Views and opinions expressed in articles published herein are the authors' only and are not to be attributed to this newsletter, the section, or the NCBA unless expressly stated. Authors are responsible for the accuracy of all citations and quotations.