LESLIE WEBB, Administratrix of the Estate of ROBERT B. WEBB, III, Plaintiff-Appellant,
WAKE FOREST UNIVERSITY BAPTIST MEDICAL CENTER, UNIVERSITY DENTAL ASSOCIATES, NORTH CAROLINA BAPTIST HOSPITAL, WAKE FOREST UNIVERSITY, WAKE FOREST UNIVERSITY PHYSICIANS, SHILPA S. BUSS, DDS, and REENA PATEL, DDS, Defendants-Appellees
Heard in the Court of Appeals September 10, 2013.
Forsyth County. No. 10-CVS-1990. John O. Craig III, Judge.
Kennedy, Kennedy, Kennedy, and Kennedy, LLP, by Harold L. Kennedy, III and Harvey L. Kennedy, for Plaintiff-Appellant.
Coffey Bomar LLP, by Tamura D. Coffey and J. Rebekah Biggerstaff, for Defendants-Appellees Wake Forest University Baptist Medical Center, North Carolina Baptist Hospital, Wake Forest University, and Wake Forest University Physicians.
Carruthers & Roth, P.A., by Kenneth L. Jones and Michal E. Yarborough, for Defendant-Appellee University Dental Associates.
McGEE, Judge. Judge McCULLOUGH concurs. Judge DILLON dissents with separate opinion.
Appeal by Plaintiff from order entered 27 August 2012 by Judge John O. Craig, III in Superior Court, Forsyth County. Heard in the Court of Appeals 10 September 2013.
Leslie Webb, Administratrix of the Estate of Robert B. Webb, III, (" Plaintiff" ), filed a complaint against Wake Forest University Baptist Medical Center, University Dental Associates, North Carolina Baptist Hospital, Wake Forest University, Wake Forest University Physicians, Shilpa S. Buss, DDS, and Reena Patel, DDS (" Defendants" ) on 13 July 2010. Plaintiff alleged that Robert B. Webb, III, (" the Decedent" ) was under general anesthesia for oral surgery, teeth cleaning, and the extraction of four teeth performed on 13 March 2008. The Decedent was sent home the same day following the procedure. He became unresponsive at home on 14 March 2008 and was pronounced dead on 15 March 2008. Plaintiff alleged that Defendants were negligent in their treatment of the Decedent and that this negligence was the proximate cause of his death.
Defendants Wake Forest University Baptist Medical Center, North Carolina Baptist Hospital, Wake Forest University, Wake Forest University Physicians, Shilpa S. Buss, DDS, and Reena Patel, DDS, filed an answer on 30 September 2010. Defendant University
Dental Associates filed a separate answer on 5 October 2010.
Defendants Wake Forest University Baptist Medical Center, North Carolina Baptist Hospital, Wake Forest University, Wake Forest University Physicians, Shilpa S. Buss, DDS, and Reena Patel, DDS, filed a motion for summary judgment on 26 July 2012. Defendant University Dental Associates filed a separate motion for summary judgment on 31 July 2012.
The trial court granted the motions for summary judgment as to " any and all allegations, claims, and causes of action involving the dental care provided to [the D]ecedent." The trial court also granted the motion for summary judgment " as to any and all allegations, claims, and causes of action that relate to the dental care provided to [the D]ecedent involving the alleged negligence of [D]efendants Wake Forest University Baptist Medical Center, North Carolina Baptist Hospital, Wake Forest University, and Wake Forest University Physicians." The trial court denied Defendants' summary judgment motion relating to anesthesia care.
I. Summary Judgment Rule
Plaintiff argues the trial court erred in granting Defendants' motions for summary judgment relating to dental care of Decedent. A trial court should grant a motion for summary judgment only " if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." N.C. Gen. Stat. § 1A-1, Rule 56(c) (2013); see also Lord v. Beerman, 191 N.C.App. 290, 293, 664 S.E.2d 331, 334 (2008).
Our Supreme Court has " emphasized that summary judgment is a drastic measure, and it should be used with caution. This is especially true in a negligence case[.]" Williams v. Power & Light Co., 296 N.C. 400, 402, 250 S.E.2d 255, 257 (1979) (internal citation omitted). The purpose of N.C.G.S. § 1A-1, Rule 56 " is to eliminate formal trials where only questions of law are involved." Lowe v. Bradford, 305 N.C. 366, 369, 289 S.E.2d 363, 366 (1982). " An issue is 'genuine' if it can be proven by substantial evidence and a fact is 'material' if it would constitute or irrevocably establish any material element of a claim or a defense." Id.
" The moving party carries the burden of establishing the lack of any triable issue." Lord, 191 N.C.App. at 293, 664 S.E.2d at 334. " The movant may meet his or her burden by proving that an essential element of the opposing party's claim is nonexistent, or by showing through discovery that the opposing party cannot produce evidence to support an essential element of his claim[.]" Id. (internal quotation marks omitted). " Generally this means that on undisputed aspects of the opposing evidential forecast, where there is no genuine issue of fact, the moving party is entitled to judgment as a matter of law." Lowe, 305 N.C. at 369, 289 S.E.2d at 366 (internal quotation marks omitted).
Once the moving party has met its initial burden, the nonmoving party must produce " a forecast of evidence demonstrating that the [nonmoving party] will be able to make out at least a prima facie case at trial" in order to survive summary judgment. Diggs v. Novant Health, Inc., 177 N.C.App. 290, 294, 628 S.E.2d 851, 855 (2006) (alteration in original). " The opposing [nonmoving] party need not convince the court that he would prevail on a triable issue of material fact but only that the issue exists." Lowe, 305 N.C. at 370, 289 S.E.2d at 366.
Plaintiff's complaint and Defendants' answers show there are genuine issues of material fact in this matter. The complaint alleged the following:
XII. That the oral surgery performed on [the Decedent] lasted 8 hours and 20 minutes, approximately four times longer than the time for the procedure represented to the parents of [the Decedent]. The oral surgery consisted of teeth cleaning and the extraction of four teeth. The patient was under general anesthesia for over 8 hours. . . .
XIV. That the oral surgeons and ...