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Leonard v. Bell

Court of Appeals of North Carolina

August 1, 2017

MARTIN LEONARD, Plaintiff,
v.
RONALD BELL, M.D., Individually, PHILLIP STOVER, M.D., Individually, Defendants.

          Heard in the Court of Appeals 7 June 2017.

         Appeal by defendants from order entered 25 October 2016 by Judge Tanya T. Wallace in Cumberland County Superior Court No. 16 CVS 3205.

          Knott & Boyle, PLLC, by W. Ellis Boyle and Benjamin Van Steinburgh, for plaintiff-appellee.

          Hedrick Gardner Kincheloe & Garofalo, LLP, by Joshua D. Neighbors, Luke Sbarra, and M. Duane Jones, for defendant-appellant Ronald Bell, M.D.

          Attorney General Joshua H. Stein, by Special Deputy Attorney General Charles G. Whitehead and Special Deputy Attorney General Amar Majmundar, for defendant-appellant Phillip Stover, M.D.

          ARROWOOD, Judge.

         Defendants Ronald Bell, M.D. ("Dr. Bell"), and Phillip Stover, M.D. ("Dr. Stover"), appeal the denial of their motions to dismiss based on grounds of public official immunity. For the following reasons, we affirm.

         I. Background

         Martin Leonard ("plaintiff") initiated this case against defendants in their individual capacities with the filing of summonses and a complaint on 5 May 2016. In the complaint, plaintiff asserts negligence claims against Dr. Bell and Dr. Stover, both physicians employed by the Department of Public Safety ("DPS"), albeit in different capacities. Those claims are based on allegations that Dr. Bell and Dr. Stover failed to meet the requisite standard of care for physicians while treating plaintiff, who at all relevant times was incarcerated in the Division of Adult Correction (the "DAC").

         Specifically, plaintiff alleges that he began experiencing severe back pain in late October 2012 and submitted the first of many requests for medical care. Over the next ten months, plaintiff was repeatedly evaluated in the DAC system by nurses, physician assistants, and Dr. Bell in response to plaintiff's complaints of increasing back pain and other attendant symptoms. Dr. Bell personally evaluated plaintiff nine times and, at the time of the seventh evaluation in June 2013, submitted a request for an MRI to the Utilization Review Board (the "Review Board"). Dr. Stover, a member of the Review Board, denied Dr. Bell's request for an MRI and instead recommended four weeks of physical therapy. Plaintiff continued to submit requests for medical care as his condition worsened. Upon further evaluations by a nurse and a physician assistant in August 2013, the physician assistant sent plaintiff to Columbus Regional Health Emergency Department for treatment. Physicians at Columbus Regional performed an x-ray and an MRI. Those tests revealed plaintiff was suffering from an erosion of bone in the L4 and L3 vertebra and a spinal infection. Plaintiff asserts Dr. Bell's failure to adequately evaluate and treat his condition, and Dr. Stover's refusal of requested treatment, amounts to medical malpractice.

         In response to the complaint, Dr. Bell filed a motion to dismiss pursuant to Rule 12(b)(6) on 13 July 2016. Among the grounds asserted for dismissal, Dr. Bell claimed he was entitled to "public official immunity for all acts and omissions alleged against him[.]" Likewise, on 19 July 2016, Dr. Stover filed a motion to dismiss pursuant to Rule 12(b)(1), (2), and (6). Defendants' motions were heard during the 3 October 2016 session of Cumberland County Superior Court before the Honorable Tanya T. Wallace. On 25 October 2016, the court denied defendants' motions to dismiss.

         Dr. Stover filed notice of appeal from the 25 October 2016 order on 18 November 2016. Dr. Bell filed notice of appeal from the 25 October 2016 order on 21 November 2016.

         II. Discussion

         On appeal, both Dr. Bell and Dr. Stover contend the trial court erred in denying their motions to dismiss. Specifically, Dr. Bell argues the trial court erred in denying his Rule 12(b)(6) motion for failure to state a claim because he is entitled to public official immunity. Dr. Stover similarly argues the trial court erred in denying his Rule 12(b)(2) and (6) motions for lack of personal jurisdiction and failure to state a claim because he is entitled to public official immunity.

         A. Interlocutory Nature of Appeals

         At the outset, we note that defendants' appeals are interlocutory because the trial court's denial of their motions to dismiss did not dispose of the case. See Veazey v. City of Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950) ("An interlocutory order is one made during the pendency of an action, which does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy."). "Generally, there is no right of immediate appeal from interlocutory orders and judgments." Goldston v. Am. Motors Corp., 326 N.C. 723, 725, 392 S.E.2d 735, 736 (1990). Immediate appeal is available, however, from an interlocutory order that affects a substantial right. N.C. Gen. Stat. §§ 1-277(a) (2015) and 7A-27(b)(3)(a) (2015). "Orders denying dispositive motions based on public official's immunity affect a substantial right and are immediately appealable." Summey v. Barker, 142 N.C.App. 688, 689, 544 S.E.2d 262, 264 (2001); see also Can Am South, LLC v. State, 234 N.C.App. 119, 122, 759 S.E.2d 304, 307 (acknowledging the longstanding rule that the denial of a motion to dismiss based on immunity pursuant to Rule 12(b)(6) affects a substantial right and is immediately appealable under N.C. Gen. Stat. § 1-277(a)), disc. review denied, 367 N.C. 791, 766 S.E.2d 624 (2014). "A substantial right is affected because '[a] valid claim of immunity is more than a defense in a lawsuit; it is in essence immunity from suit. Were the case to be erroneously permitted to proceed to trial, immunity would be effectively lost.' " Farrell v. ...


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