Heard in the Court of Appeals February 5, 2014.
Counsel Amended, June 3, 2014.
Mecklenburg County. No. 11 CVS 18251. Richard D. Boner, Judge.
Van Laningham Duncan PLLC, by Mr. Stephen M. Russell, Jr., for plaintiff-appellants.
Parker Poe Adams & Bernstein, LLP, by Mr. John H. Beyer, Jami J. Farris, and Mr. John D. Branson, for defendants John F. Vullo, M.D., Southeast Anesthesiology Consultants, PLLC, f/k/a Southeast Anesthesiology Consultants, P.A., and American Anesthesiology of the Southeast, PLLC.
Lincoln Derr PLLC, by Ms. Tricia M. Derr, for defendants The Charlotte-Mecklenburg Hospital Authority d/b/a/ Carolinas Healthcare System d/b/a Carolinas Medical Center and Mercy Hospital, Inc.
McCULLOUGH, Judge. Judges HUNTER, Robert C. and GEER concur.
Appeal by plaintiffs from order entered 12 April 2013 by Judge Richard D. Boner in Mecklenburg County Superior Court. Heard in the Court of Appeals 5 February 2014.
Plaintiffs Michele LaFrage Peter and Carl Peter appeal from an order granting summary judgment in favor of defendants John Vullo, M.D., Southeast Anesthesiology Consultants, PLLC f/k/a Southeast Anesthesiology Consultants, P.A., American Anesthesiology of the Southeast, PLLC, The Charlotte-Mecklenburg Hospital Authority d/b/a Carolinas Healthcare System d/b/a Carolinas Medical Center, and Mercy Hospital, Inc. Based on the reasons stated herein, we reverse in part and affirm in part.
Plaintiffs Michele LaFrage Peter (" Ms. Peter" ) and Carl Peter (" Dr. Peter" ) are married. On 13 July 2012, plaintiffs filed an amended complaint against defendants John F. Vullo, M.D., Southeast Anesthesiology Consultants, PLLC f/k/a Southeast Anesthesiology Consultants, P.A., American Anesthesiology of the Southeast, PLLC, (collectively " the doctor defendants" ), The Charlotte-Mecklenburg Hospital Authority d/b/a Carolinas Healthcare System d/b/a Carolinas Medical Center (" CMC" ), and Mercy Hospital, Inc. (" CMC Mercy" ) (collectively " the hospital defendants" ). Plaintiffs' claims included professional negligence, loss of consortium by Dr. Peter, and respondeat superior liability.
Plaintiffs' complaint alleged the following: In February 2010, Ms. Peter suffered a severe sprain of her right ankle. In June 2010, after several months of physical therapy and two MRIs, Ms. Peter was referred to Dr. Robert Anderson, a foot and ankle specialist with OrthoCarolina in Charlotte, North Carolina. Dr. Anderson recommended surgical intervention and scheduled for it to take place on 22 December 2010 at CMC/CMC Mercy. On 22 December 2010, Ms. Peter underwent surgery at CMC/CMC Mercy. Plaintiffs alleged that defendants induced regional anesthesia in preparation for Ms. Peter's right ankle arthroscopic surgery. " Ms. Peter was given fentanyl and versed for sedation and remained in 'conscious sedation' throughout the procedure." Dr. Vullo, an employee of Southeast Anesthesiology Consultants, PLLC, f/k/a Southeast Anesthesiology Consultants, P.A. and/or American Anesthesiology of the Southeast, PLLC, was to administer a popliteal nerve block and a saphenous nerve block into an area behind Ms. Peter's right knee.
Plaintiffs alleged that at some point during the procedure, an unknown female attendant entered the room to assist Dr. Vullo as he was " having problems locating a nerve" to administer the appropriate blocks. Plaintiffs assert that defendants failed to properly administer the nerve blocks and improperly administered repeated needle insertions, resulting in nerve damage. Ms. Peter stated that immediately following the injections, she experienced extreme pain and numbness in her right leg from which she still suffers. The pain and numbness has resulted in her inability to work and conduct day-to-day activities.
The hospital defendants and the doctor defendants filed motions for summary judgment on 25 February 2013 pursuant to Rule 56 of the North Carolina Rules of Civil Procedure. The doctor defendants argued that plaintiffs' complaint was a medical malpractice action as defined by N.C. Gen. Stat. § 90-21.11. The doctor defendants contended that on 10 October 2012, a " Revised Consent Discovery Scheduling Order" was entered. This order set forth a schedule for the designation of expert witnesses and the completion of discovery prior to trial. Pursuant to this order, plaintiffs identified two retained medical expert witnesses that were to testify at trial: Dr. Steven Fiamengo, anesthesiologist of Newberry, South Carolina, and Dr. Robert Friedman, neurologist of Palm Beach, Florida. Both doctors were deposed and the doctor defendants argued that plaintiffs " failed to designate a qualified expert witness to offer an opinion that Dr. Vullo deviated from the applicable standard of care." Furthermore, the doctor defendants argued that plaintiffs could not establish a prima facie case of medical malpractice.
On 5 April 2013, plaintiffs filed an affidavit of Dr. Fiamengo in response to defendants' motions for summary judgment. On 8 April 2013, doctor defendants filed a motion to strike Dr. Fiamengo's affidavit.
Following a hearing held at the 9 April 2013 term of Mecklenburg County Superior Court, the trial court entered an order granting defendants' motions for summary judgment and dismissing plaintiffs' claims with prejudice on 12 April 2013. The trial court also held the following:
The Court declines to strike Dr. Fiamengo's Affidavit in its entirety, but is aware of and has applied the law as set forth in Wachovia Mortgage Co. v. Autry-Barker-Spurrier Real Estates, Inc., 39 N.C.App. 1, 249 S.E.2d 727 (1978) (holding that a party opposing a motion for summary judgment cannot create an issue of fact by filing an affidavit contradicting the prior sworn testimony of a witness).
From this 12 April 2013 summary judgment order, plaintiffs appeal.
II. Standard of Review
" Our standard of review of an appeal from summary judgment is de novo; such judgment is appropriate only when the record shows 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." In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008) (citation and quotation marks omitted).
The moving party bears the burden of establishing the lack of a triable issue of fact. If the movant meets its burden, the nonmovant is then required to produce a forecast of evidence demonstrating that the [nonmoving party] will be able to make out at least a prima facie case at trial. Furthermore, the evidence presented by the parties must be viewed in the light most favorable to the non-movant.
Thompson v. First Citizens Bank & Trust Co., 151 N.C.App. 704, 706, 567 S.E.2d 184, 187 (2002) (internal citations and quotation marks omitted).
On appeal, plaintiffs argue that the trial court erred (A) by granting summary judgment in favor of the doctor defendants; (B) in its consideration of Dr. Fiamengo's affidavit; (C) by granting summary judgment in favor of the hospital defendants; and (D) by granting summary judgment as to the loss of consortium claim. Because issues (A) and (B) are closely related, we will address them together.
A. Summary Judgment in favor of the Doctor Defendants and B. Affidavit of Dr. Fiamengo
Plaintiffs argue that that trial court erred by granting summary judgment in favor of the doctor defendants where plaintiffs forecast sufficient evidence to satisfy the requirements of a medical malpractice claim pursuant to section 90-21.12(a) of the North Carolina General Statutes. Plaintiffs also argue that ...