in the Court of Appeals 7 June 2017.
by defendants from order entered 25 October 2016 by Judge
Tanya T. Wallace in Cumberland County Superior Court No. 16
& 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
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.
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
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.
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.
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.
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
Interlocutory Nature of Appeals
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. ...