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Hawkins v. Emergency Med. Physicians of Craven Cnty., PLLC

Court of Appeals of North Carolina

April 7, 2015

ANNETTE M. HAWKINS, As Administratrix of the Estate of RICHARD V. HAWKINS, JR., deceased, Plaintiff,

Heard in the Court of Appeals February 3, 2015

Craven County. No. 11 CVS 1403.

BUTLER DANIEL & ASSOCIATES, PLLC, by A. L. Butler Daniel and Erin K. Pleasant, for plaintiff.

CRANFILL SUMNER & HARTZOG, LLP, by Jaye E. Bingham-Hinch and Christopher M. Hinnant, for defendants.

ELMORE, Judge. Judges DAVIS and TYSON concur.


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Appeal by plaintiff from order entered 2 April 2014 by Judge W. Allen Cobb, Jr. in Craven County Superior Court.

ELMORE, Judge.

Annette M. Hawkins (" plaintiff" ), executrix of the estate of Richard V. Hawkins, Jr., appeals the trial court's order granting summary judgment in favor of Gary H. Lavine, M.D., and Emergency Medical Physicians of Craven County, PLLC (collectively " defendants" ).

I. Background

The facts of this case are largely undisputed. In the early morning hours of 15 January 2011, Richard Hawkins (" Mr. Hawkins" ) woke up to take a pill. However, upon swallowing it, he lost consciousness and fell to the floor, hitting his head on the way down. Mr. Hawkins' wife called the Cove City Rescue Squad. The paramedics noticed a laceration on the back of Mr. Hawkins' head that was one inch long and one-half an inch wide. Mr. Hawkins was transported by ambulance to

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the Emergency Department (" ED" ) at CarolinaEast Medical Center at approximately 2:36 a.m.

Dr. Gary Lavine (" Dr. Lavine" ) was the emergency physician on duty. Upon arrival, Dr. Lavine examined Mr. Hawkins. Mr. Hawkins stated that on a scale of one to ten, the pain in his head was a five, and he felt nauseated. Dr. Lavine ordered an echocardiogram (EKG), which revealed an improper heart rhythm known as atrial fibrillation, or atrial flutter. The danger from atrial fibrillation is a stroke. Dr. Lavine also ordered a CT scan of Mr. Hawkins' brain, which was interpreted by the radiologist on duty as normal, showing no active intracranial bleed or acute abnormalities.

Dr. Lavine consulted with Dr. William H. Bobbitt, III, the hospitalist on call, and arrangements were made to admit Mr. Hawkins to the medical center for monitoring and treatment of his atrial fibrillation. Out of concern for Mr. Hawkins' atrial fibrillation, Dr. Lavine ordered one dose of the anticoagulation medication Lovenox, which was administered to Mr. Hawkins in the ED at 6:21 a.m. on 15 January 2011. The purpose of Lovenox is to prevent the formation of blood clots. According to the testimony in this case, Lovenox is a fast-acting, but not long lasting, anticoagulation with a half-life of approximately four and a half hours. Therefore, the single dose ordered by Dr. Lavine normally would have lost its effectiveness by 6:30 p.m.--approximately twelve hours after it was administered.

Mr. Hawkins was admitted to the hospital at approximately 6:30 a.m. that same day. Because Dr. Lavine was employed by the hospital as an emergency physician only, he did not have privileges to practice inside the hospital. Therefore, Dr. Lavine was not responsible for Mr. Hawkins' medical care after Mr. Hawkins was admitted. Dr. Lavine's four-day shift ended on the morning of 15 January, and he did not return to the ED for another four days.

During Mr. Hawkins' stay in the medical center, subsequent treating physicians ordered additional doses of anticoagulation medications, including Coumadin and aspirin. In addition, Dr. Bobbit ordered a dose of Lovenox every twelve hours. In total, Mr. Hawkins received four doses of Lovenox while he was admitted, plus the one dose he received in the ED.

Mr. Hawkins was scheduled to be discharged from CarolinaEast on 17 January 2011, after undergoing a cardioversion procedure that was intended to treat his atrial fibrillation. However, after the procedure was performed on the morning of 17 January, physicians had difficulty waking Mr. Hawkins from the anesthesia. Doctors ordered an MRI of Mr. Hawkins' brain, which showed that Mr. Hawkins had suffered an intracranial brain hemorrhage. In an attempt to best treat this condition, Mr. Hawkins was transferred to the University of North Carolina hospital, where he died from complications due to the intracranial hemorrhage on 20 January 2011.

On 2 September 2011, plaintiff filed suit against CarolinaEast Health System, Emergency Medicine Physicians of Craven County, PLLC; Dr. Gary H. Lavine; Eagle Hospitalist Connections, LLC; Dr. William H. Bobbit, III; Dr. Anubhi Goel; The Heart Center of Eastern Carolina, PLLC; and Dr. John A. Williams, III. On or about 18 November 2013, Dr. Lavine and Emergency Medical Physicians of Craven County, PLLC (collectively " defendants" ) moved for summary judgment on grounds that plaintiff failed to forecast sufficient evidence on the issue of causation. On 2 April 2014, Judge W. Allen Cobb, Jr., entered an order granting defendants' motion for summary judgment. Plaintiff appeals the summary judgment order entered in defendants' favor.

II. Interlocutory Order

First, we must consider whether this appeal is properly before this Court. In the case sub judice, summary judgment was granted as to one but not all of the defendants and the trial court did not certify that there was " no just reason for delay" as required by N.C. Gen. Stat. § 1A-1, Rule 54(b) (2013). However, N.C. Gen. Stat. § 1-277 (2013) and N.C. Gen. Stat. § 7A-27(b)(3)(a) and (b) (2013) allow this Court to consider an interlocutory appeal where the grant of summary

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judgment affects a substantial right. Id.

Our Supreme Court has held that a grant of summary judgment as to fewer than all of the defendants affects a substantial right when there is the possibility of inconsistent verdicts, stating that it is 'the plaintiff's right to have one jury decide whether the conduct of one, some, all or none of the defendants caused his injuries. This Court has created a two-part test to show that a substantial right is affected, requiring a party to show " (1) the same ...

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