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Parkes v. Hermann

Court of Appeals of North Carolina

May 21, 2019

ANITA KATHLEEN PARKES, Plaintiff,
v.
JAMES HOWARD HERMANN, Defendant.

          Heard in the Court of Appeals 28 March 2019.

          Appeal by Plaintiff from order entered 25 May 2018 by Judge Jesse B. Caldwell III in Lincoln County No. 17-CvS-402 Superior Court.

          Melrose Law, PLLC, by Mark R. Melrose and Adam R. Melrose, for the Plaintiff.

          Roberts & Stevens, P.A., by Phillip T. Jackson and Elizabeth T. Dechant, for the Defendant.

          DILLON JUDGE.

         Plaintiff Anita Kathleen Parkes appeals from an order granting summary judgment on her medical malpractice claim in favor of Defendant James Howard Hermann ("Dr. Hermann"). We affirm the trial court's grant of summary judgment to Dr. Hermann as Ms. Parkes failed to show evidence of proximate cause.

         I. Background

         The evidence in the light most favorable to Ms. Parkes shows as follows:

         Ms. Parkes exhibited signs of a stroke just after midnight on 24 August 2014. Her family transported her to the emergency room of a nearby hospital, arriving shortly before 2:00 A.M. The proper protocol where a patient presents herself for treatment within three hours of suffering a stroke is to administer Alteplase, a tissue plasminogen activator, (hereinafter "tPA"). Where this drug is administered within three hours of the onset of a stroke, a patient who would otherwise suffer lasting neurological effects has a 40% chance of an improved neurological outcome.

         When Ms. Parkes arrived at the hospital, she was seen immediately by Dr. Hermann, who was the on-duty emergency physician. Dr. Hermann failed to properly diagnose that Ms. Parkes had suffered a stroke; and, accordingly, he did not administer tPA within the three-hour window. Ms. Parkes continues to suffer adverse neurological effects, such as diminished mobility, from her stroke.

         Had Dr. Hermann properly diagnosed the stroke, the standard of care would have dictated that he administer tPA. If tPA had been administered, Ms. Parkes would have had a 40% chance of a better neurological outcome than the outcome that she, in fact, is experiencing.

         Because tPA was not available at the local hospital where Ms. Parkes was seen, she would have needed to be transported to the nearest hospital where tPA could be administered. Thus, prompt diagnosis of the stroke was crucial to arrange tPA therapy within the three-hour period.

         In April 2017, Ms. Parkes brought this medical malpractice negligence action against Dr. Hermann, claiming that her chance for an improved neurological outcome was diminished by Dr. Hermann's failure to diagnose her stroke and administer tPA. Dr. Hermann moved for summary judgment on the grounds that Ms. Parkes did not satisfy the "proximate cause" element of her claim. Specifically, Dr. Hermann argues that Ms. Parkes failed to establish that she more likely than not (greater than 50% likelihood) would be better but for Dr. Hermann's negligent conduct.

         After a hearing on the matter, the trial court entered summary judgment in favor of Dr. ...


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