KRISTA RAGSDALE, GUARDIAN AD LITEM FOR ALEC SEEBURGER, Plaintiff,
DR. JOHN M. WHITLEY AND CUMBERLAND COUNTY HOSPITAL SYSTEM, INC., D/B/A CAPE FEAR VALLEY HEALTH SYSTEM, Defendants.
in the Court of Appeals 29 November 2017.
by plaintiff from order entered 16 May 2017 by Judge Beecher
R. Gray in Cumberland County No. 15 CVS 9497 Superior Court.
Brewer, Jr. and Allen W. Rogers for plaintiff-appellant.
Poe Adams & Bernstein LLP, by Michael J. Crook and
Patrick M. Meacham, for defendant-appellees.
Ragsdale ("Krista"), guardian ad litem for Alec
Seeburger ("Alec"), ("plaintiff") appeals
from an order granting summary judgment in favor of Dr. John
Whitley ("Dr. Whitley") and Cumberland County
Hospital System, Inc., d/b/a Cape Fear Valley Health System
("defendants"). For the reasons stated herein, we
reverse the order of the trial court and remand for further
May 2015, Alec filed a complaint for medical malpractice
against Dr. Whitley and Cape Fear Valley Neurosurgery d/b/a
Cape Fear Valley Health System Specialty Group, LLC f/k/a
Cape Fear Valley Health System, Inc. On 12 November 2015,
Alec voluntarily dismissed the complaint pursuant to Rule 41
of the North Carolina Rules of Civil Procedure.
December 2015, plaintiff was appointed as guardian ad litem
("GAL") for Alec. In an order filed 31 December
2015, the trial court stated that "[i]t appears to the
Court from [Krista's] affidavit and the statement from
his treating physician that Alec  is incapable of
conducting his own affairs and is entitled to the appointment
of a Guardian ad Litem."
December 2015, plaintiff refiled the complaint against
defendants. On 5 April 2016, plaintiff filed an amended
complaint. Plaintiff alleged as follows: Alec was born on 19
January 1996 and was until his eighteenth birthday on 19
January 2014, "a minor and was then, continuously has
been and is presently under a disability preventing him from
initiating this civil action for medical malpractice and
professional negligence by the Defendants in this case."
Plaintiff alleged that her claim was filed within the
applicable statute of repose in that the last act giving rise
to the cause of action occurred on 12 February 2012, when
defendants' negligent treatment of Alec was discovered.
In February of 2011, Alec began experiencing peripheral
vision difficulties and was later diagnosed with having a
large pituitary adenoma. A blood test to determine prolactin
levels of the large pituitary adenoma could determine whether
it should be treated surgically or medically. Plaintiff
alleged that Dr. Whitley, Alec's neurosurgeon, when
evaluating the need for and extent of brain surgery, and
while treating Alec after surgery, negligently failed to
assess the nature of the adenoma by failing to order a blood
test to determine whether the pituitary adenoma could be
treated medically instead of surgically.
underwent surgery with Dr. Whitley on 6 March 2011. The
surgery resulted in substantial swelling of Alec's brain,
proximately causing a severe stroke and "severe,
permanent, and debilitating neurological damage in addition
to the severe, permanent, and debilitating neurological
damage previously caused by the extensive and invasive brain
surgery performed by Defendant Whitley." Plaintiff
further alleged that surgery was unnecessary and
inappropriate because Alec had a prolactinoma which should
have been treated medically rather than surgically. Dr.
Whitley's failure to order a blood test was a departure
from the required or expected standard of care. Dr. Whitley
continued to treat Alec until or about 12 February 2012,
during which time Alec "experienced great pain and
suffering, inability to see or walk and substantial
alleged that in February of 2012, Alec began receiving
medical services from Dr. Gerald Grant ("Dr.
Grant"). Dr. Grant ordered a blood test which
established that Alec's "tumor was a prolactinoma
which was treatable medically." Plaintiff alleged that
Dr. Whitley's surgery and the delay in beginning
appropriate medical treatment of the tumor had proximately
caused "severe and permanent neurological and
physiological damage" to Alec.
May 2016, defendants filed an answer to the amended
complaint. On 27 February 2017, defendants also filed a
motion for summary judgment pursuant to Rule 56 of the North
Carolina Rules of Civil Procedure.
In a 16
May 2017 order, the trial court granted defendants'
motion for summary judgment and ...