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Mangan v. Hunter

Court of Appeals of North Carolina

December 3, 2019


          Heard in the Court of Appeals 21 August 2019.

          Appeal by Plaintiff from Order entered 23 July 2018 by Judge Beecher R. Gray in Cabarrus County No. 16 CVS 508 Superior Court.

          Lanier Law Group, P.A., by Donald S. Higley, II, and Lancaster and St. Louis, PLLC, by Hilary A. St. Louis, for plaintiff-appellant.

          Hedrick Gardner Kincheloe & Garofalo LLP, by M. Duane Jones and Luke Sbarra, for defendants-appellees.

          HAMPSON, Judge.

         Factual and Procedural Background

         Charity Mangan (Plaintiff) appeals from an Order entered 23 July 2018 granting summary judgment in favor of Defendants James S. Hunter, DDS (Dr. Hunter) and James S. Hunter, DDS, P.A. (collectively, Defendants) in this medical malpractice action. The Record before us on appeal tends to establish the following:

         Plaintiff began visiting Dr. Hunter for dental treatment in 1986 and continued to be a regular patient until Dr. Hunter's retirement in 2013. During the twenty- seven years that Plaintiff saw Dr. Hunter for dental care, Plaintiff developed temporomandibular joint disorder, migraines, and fibromyalgia. She also developed bruxism (teeth grinding). Plaintiff's last appointment with Dr. Hunter was on 17 April 2013. At that time, Dr. Hunter reported no dental caries.[1] Dr. Hunter did recommend a crown along with continued use of Plaintiff's dental guard.

         Seven months later, in November 2013, Plaintiff visited a new dentist, Dr. Sherrill Jordan, for routine dental care. Dr. Jordan reported tooth erosion on nearly all of Plaintiff's teeth and twelve cavities. Plaintiff received a second opinion from Dr. Wells, whose opinion was very similar to Dr. Jordan's. Plaintiff received treatment for thirteen cavities in December 2013 by Dr. Wells. In February 2014, Plaintiff visited another new dentist, Dr. Jason Baker, and received additional dental treatments in March 2014. Dr. Baker referred Plaintiff to Dr. Napenas in May 2014, and Dr. Napenas subsequently diagnosed her with atypical odontalgia. Dr. Napenas informed Plaintiff that "treatment [for atypical odontalgia] would include a life-long management for the pain with similar medications as what she was already taking for fibromyalgia." He prescribed Plaintiff an antidepressant for nerve pain and stress management. Plaintiff also alleged her primary care physician prescribed her blood pressure medication as a result of the stress of the situation. At the time of the filing of the Complaint, Plaintiff was still seeing Drs. Baker and Napenas for treatment.

         In March 2015, Sharon Szeszycki, DDS (Dr. Szeszycki) was contacted by Plaintiff's counsel about the present action. Dr. Szeszycki, a dentist in the Chicago area, has been working as an expert witness in the area of dental malpractice since 2007. Around 10 March 2015, counsel for Plaintiff mailed a letter to Dr. Szeszycki that indicated it included a USB drive with Plaintiff's records. On 20 March 2015, Dr. Szeszycki reported, in her Affidavit Letter to Plaintiff's counsel, "[a] reasonable and meritorious cause for action exists with respect to James Hunter DDS[.]" Dr. Szeszycki's Affidavit Letter stated, in forming her opinion, she reviewed: "Mangan timeline of events[, ] Dr. Baker letter[, ] Demand letter to Luke Sbarra March 2015[, ] Baker treatment plan[, ] Perio charting[, and] Mangan teeth pics." She continued to find "Dr. Hunter failed to document any concerns he might have had regarding the erosion issues during the Patient's time as a patient in his practice for the purposes of quantifying and analyzing the origin and progression of this disease process."

         On 18 February 2016, Plaintiff filed her Complaint alleging medical malpractice against Defendants in Cabarrus County Superior Court. In accordance with Rule 9(j) of the North Carolina Rules of Civil Procedure, Plaintiff's Complaint alleged:

[A]ll medical records pertaining to Defendants' negligence . . . have been reviewed by a person or persons reasonably expected to qualify as an expert witness under Rule 702 of the North Carolina Rules of Evidence and who is/are willing to testify that the medical care did not comply with the applicable standard of care.

         Defendants accepted service on 13 April 2016 and submitted their Answer to Plaintiff's Complaint on 13 June 2016. The parties began discovery. On 27 April 2018, Plaintiff voluntarily dismissed her claims against Jennifer Wells, DDS and Jennifer Wells, DDS, P.A. d/b/a First Impressions Family Dentistry without prejudice.

         On 29 August 2016, Dr. Szeszycki responded to Defendants' Rule 9(j) interrogatories. The relevant responses are as follows:

4. Specifically identify all documents you reviewed to form your opinion about the medical care rendered by any Defendants.
RESPONSE [Dr. Szeszycki]
I reviewed the following materials:
Mangan timeline of events
Dr. Baker letter
Demand letter to Luke Sbarra March 2015
Baker treatment plan
Perio charting
Mangan teeth pics
5. State with specificity the date you received the medical records regarding Plaintiff, the date you actually reviewed the medical care rendered, when and to whom you expressed your opinions regarding the medical care Defendants provided to Plaintiff, and whether you provided anyone a written, verbal, or other report regarding your conclusions.
I received the materials on or about March 15, 2015 and began my review on that date. I continued my review on March 17, 2015 and then prepared a written Affidavit on March 20, 2015 expressing my opinions. (R p. 48).

         On 2 April 2018, Plaintiff designated Dr. Szeszycki as an expert witness. Plaintiff submitted "Dr. Szeszycki is expected to testify that Defendants breached the standard of care in their care and treatment of [Plaintiff]" and that "Dr. Szeszycki bases her opinions on her education and training as well as her review of [Plaintiff's] medical records."

         Defendants deposed Dr. Szeszycki on 10 May 2018. Dr. Szeszycki's deposition revealed the following exchanges:

[Counsel for Defendants:] [W]hat information do you have that you relied on that you do not have with you printed out . . . ?
[Dr. Szeszycki:] Okay. There is a Baker treatment plan, Baker updated treatment plan. There was a demand letter to you. There's Dr. Baker X-ray, Dr. Baker letter. There's a file that says Gawthrop-Wells-Mangan. Another one that's Hunter-Mangan, which I think is what I have with me because that's his clinical notes, Dr. Hunter's clinical notes, and then there is a Hunter, DDS, James condensed version, which is his dep. Jordan DDS. Mangan timeline of events. . . .
. . . .
[Counsel for Defendants:] This is, I believe, your responses to the 9(j) discovery responses. Do you recall ...

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