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Creech v. Melnik

February 06, 1998

SHARON CREECH AND TRAVIS CREECH, GUARDIANS AD LITEM OF JUSTIN CREECH, MINOR
v.
EVELYN H. MELNIK, M.D.



Appeal of right by plaintiffs pursuant to N.C.G.S. § 7A-30(2) from a decision of a divided panel of the Court of Appeals, 124 N.C. App. 502, 477 S.E.2d 680 (1996), affirming the order of summary judgment for defendant entered by Gore, J., on 8 June 1995 in Superior Court, Columbus County. Heard in the Supreme Court 13 October 1997.

The opinion of the court was delivered by: Mitchell, Chief Justice.

The questions presented for review are whether the Court of Appeals erred in affirming the trial court's order for summary judgment in favor of defendant on the grounds of breach of implied contract and equitable estoppel. Since we find there are genuine issues of material fact as to both issues, we reverse the decision of the Court of Appeals.

The parties agree that plaintiffs' minor son, Justin Creech, was born at Southeastern General Hospital in Lumberton on 23 September 1980. At birth, Justin's vital signs were not stable, and he was transferred to the intensive care nursery. As a result of oxygen deprivation, Justin suffers from brain damage, blindness, quadriplegia, cerebral palsy, profound mental retardation, and microcephaly.

Although the forecasts of evidence of the parties are in conflict on many points, they forecast substantial evidence from which a jury could find, but would not be required to find, the following facts. Defendant, Dr. Evelyn H. Melnik, is a neonatologist, a pediatrician specializing in the care of newborn infants. When Justin was born on 23 September 1980, Dr. Melnik was the director of newborn nurseries at Southeastern General Hospital. Because Justin's vital signs were not stable at the time of his birth, Dr. Melnik was called to resuscitate him. Justin was then transferred to the intensive care nursery. Plaintiffs concede that Dr. Melnik's resuscitation of Justin was not a cause of his injuries. Plaintiffs claim, however, that Dr. Melnik failed to care for Justin properly for approximately two hours--2:30 p.m. to 4:30 p.m. on 23 September 1980--following Justin's admission to the intensive care nursery. Plaintiffs allege that this failure resulted in Justin's condition significantly worsening.

In his initial investigation of the events surrounding Justin's birth and immediate aftercare, plaintiffs' attorney, Mr. W. Paul Pulley, focused on obstetrical negligence in the delivery room. He obtained hospital records that were unclear in several respects concerning the circumstances surrounding Justin's birth. The records did indicate, however, that Dr. Melnik had been present during Justin's birth. Because Dr. Melnik had not participated in the obstetrical care that was the subject of Mr. Pulley's investigation but had been in the delivery room and resuscitated Justin, Mr. Pulley contacted Dr. Melnik by telephone to determine what she could remember about the circumstances of Justin's birth. Mr. Pulley told Dr. Melnik that he was investigating the circumstances of Justin's birth and was interested in the role performed by Linda May, a nurse-midwife who, according to hospital records, had performed the delivery. Mr. Pulley asked Dr. Melnik if she would help him understand the records. She agreed to meet with Mr. Pulley and asked him to bring the records with him. Thereafter, Mr. Pulley met with Dr. Melnik at her office. He went over the medical records with her and asked her questions about the typical role of a nurse-midwife. During that meeting, he told Dr. Melnik that his focus was upon the obstetrical care in the case and that he had no reason to consider her as a potential defendant.

During her initial meeting with Mr. Pulley, Dr. Melnik reviewed the medical records he had brought and made statements to the effect that negligent pediatric care during the hours immediately following Justin's birth could have contributed to his condition. In particular, she noted that no tests of blood gases had been taken until 7:00 p.m. As a result, Justin did not receive enough oxygen, which caused him to suffer from neonatal asphyxia. To that point, Mr. Pulley had regarded Dr. Melnik as a possible eyewitness to obstetrical negligence, but her comments during this initial meeting caused him to expand the scope of his inquiry to include pediatric records.

During their initial meeting, Dr. Melnik told Mr. Pulley that she had had nothing to do with Justin's care on 23 September 1980 following her resuscitation of him in the delivery room. She stated that Dr. Edmund Coley had provided Justin's pediatric care until the day after his birth, when she became involved. The medical records in Mr. Pulley's possession tended to support her statement, as the only record in his possession showing that she had been in the nursery was dated 24 September 1980, the day after Justin's birth. Dr. Melnik also stated that had she been treating Justin, she would have ordered tests of blood gases, which probably would have resulted in his receiving a higher concentration of oxygen. She stated that Dr. Coley probably had not done this because he had not seen Justin and had not realized his condition. Dr. Melnik sent Mr. Pulley a bill in the amount of $450.00 for three hours' consultation time as a result of their first meeting, which was paid in full.

As a result of his meeting with Dr. Melnik, Mr. Pulley reexamined the medical records, which revealed that Dr. Coley had signed the pediatric records immediately after delivery. Based on the records and Dr. Melnik's statement that the pediatric care had been inadequate, Mr. Pulley brought a suit on behalf of plaintiffs against Dr. Coley and others, alleging that Dr. Coley had failed to provide Justin with proper pediatric care from the time immediately following his birth until approximately 7:30 p.m. Because Dr. Melnik had said she had nothing to do with Justin's care during that critical period of time, Mr. Pulley did not consider joining her as a defendant in that lawsuit.

In his answers to interrogatories in plaintiffs' action against him, Dr. Coley stated that on 23 September 1980, the date of Justin's birth, Dr. Melnik had undertaken Justin's pediatric care from the time of his delivery until 4:30 p.m. At that time, Dr. Coley assumed responsibility until Dr. Melnik took over Justin's primary care. In light of Dr. Coley's contradiction of Dr. Melnik's earlier statement that she had not been involved in Justin's post-delivery pediatric care on 23 September 1980, Mr. Pulley called her to ask her reaction. She continued to state that Dr. Coley had been in charge of Justin's care from the time of his delivery until 4:30 p.m. and that she had not been involved. Mr. Pulley continued to believe her statements and to seek evidence that Dr. Coley had been involved in Justin's care during the hours immediately following his birth. During a later conversation, Dr. Melnik asked Mr. Pulley whether she was a potential defendant. Mr. Pulley responded that she had told him that she had not had anything to do with Justin's care in the hours after his birth, and "I don't know of any reason we can be suing you."

Sometime later, Thelma Jean Reeves, a nurse at Southeastern General Hospital, gave a deposition in which she testified that in those instances where Dr. Melnik had been present at the delivery of a child who needed medical attention, it had been Dr. Melnik's customary practice to follow the child into the nursery. Ms. Reeves further testified that, although Dr. Coley's signature was on an order written at 2:30 p.m. on 23 September 1980, Dr. Melnik could have given the order orally, with Dr. Coley having signed it at some time after 4:30 p.m. Following Ms. Reeves' deposition, Mr. Pulley contacted Dr. Melnik and told her the substance of Ms. Reeves' testimony. At that time, he advised Dr. Melnik that she had potential malpractice exposure and recommended that she notify her malpractice carrier and retain an attorney. Thereafter, he sent her a copy of Ms. Reeves' deposition.

A few weeks later, Dr. Melnik's deposition was taken. Her testimony was consistent with the statements she had given Mr. Pulley since their first meeting. She continued to deny any responsibility for Justin's care between 2:30 p.m. and 4:30 p.m. on 23 September 1980. She also indicated that Justin had been taken off oxygen support at 2:45 p.m. without blood gases having been taken and that this was contrary to sound medical practice. She stated that had adequate ventilator support been provided at 2:30 p.m., it would have improved Justin's condition.

Dr. Coley was deposed and denied any involvement in Justin's care before 4:20 p.m. on 23 September 1980. He said that although his signature was on an order written at 2:30 p.m., he had merely countersigned the order, which appeared to have originated in the delivery room. Dr. Coley testified that Dr. Melnik had been in charge of Justin's care from 2:30 p.m. until 4:30 p.m. He also testified that he had found an order in the records of another child in the nursery that had been signed by Dr. Melnik at 3:25 p.m. on 23 September 1980, which tended to confirm her presence in the nursery during the critical period in Justin's care.

In light of Dr. Coley's testimony and other evidence, plaintiffs moved to amend their complaint in the action against Dr. Coley to add Dr. Melnik as a party-defendant. That motion was denied, and the case against Dr. Coley and others was eventually settled.

We repeat that the foregoing is a statement of facts that a jury could reasonably find from the evidence forecast by the parties. We reemphasize, however, that a jury would not be required to make such findings and that, in many ...


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