Beck v. Depaolo

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TRACY MICHELLE BECK and CHARLES BILL BECK, Plaintiffs, v. CHARLES J. DePAOLO, M.D., CHARLES J. DePAOLO, M.D., P.A., and MISSION HOSPITAL, INC., Defendant.

No. COA23-764

Court of Appeals of North Carolina

June 4, 2024

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

Heard in the Court of Appeals 5 March 2024.

Appeal by Plaintiff from an order entered 3 January 2023 by Judge Lisa C. Bell in Buncombe County No. 20 CVS 4200 Superior Court.

James McElroy & Diehl, P.A., by Preston O. Odom, III, Adam L Ross, and Jennifer M. Houti, for plaintiffs-appellants.

Roberts & Stevens, P.A., by David C. Hawisher, for Mission Hospital, Inc., defendant-appellee.

WOOD JUDGE.

Tracy Beck ("Mrs. Beck") and Charles Beck (together, the "Becks" or "Plaintiffs") sued Dr. Charles DePaolo ("Dr. DePaolo"), Dr. DePaolo's business entity ("DePaolo Orthopedics"), and Mission Hospital on 23 November 2020 for medical malpractice and loss of consortium. The trial court granted Mission Hospital's motion for summary judgment. For the reasons stated below, we affirm.

I. Factual and Procedural History

Mrs. Beck was first evaluated by Dr. DePaolo on 20 June 2018 because she was experiencing significant pain in her left hip. After discussing treatment options with Mrs. Beck, Dr. DePaolo recommended an anterior approach total hip replacement to which Mrs. Beck agreed.

On 5 July 2018, Dr. DePaolo performed an anterior approach left total hip replacement on Mrs. Beck at a Mission Hospital-owned facility. Mission Hospital provided its staff to work in the operating room ("OR") with Dr. DePaolo. Two of Mission Hospital's circulating nurses were responsible for operating the Hana table on which Mrs. Beck's surgery was performed. The Hana table is a specially designed operating table often used in anterior approach hip replacements to allow nurses to manipulate the patient's leg and apply traction to open up the hip joint and provide visibility and access to the surgeon. During her recovery from the surgery, Mrs. Beck experienced numbness and weakness in her leg, which was discovered to be the result of an injury to her femoral nerve.

The Becks filed a complaint on 23 November 2020 and an amended complaint on 2 July 2021 against all three defendants, Dr. DePaolo, DePaolo Orthopedics, and Mission Hospital for medical malpractice and loss of consortium. Mission Hospital answered and denied liability, as did the DePaolo Defendants. On 2 September 2022, Mission Hospital filed a motion for summary judgment on the Becks' claims against it. On 2 October 2022, Mission Hospital also filed a motion to dismiss for the Becks' alleged failure to meet the certification requirements for medical malpractice pleadings under N.C. R. Civ. P. 9(j). On 15 October 2021, Plaintiffs filed a designation of expert witness giving notice that they intended to call Dr. Brandon Boyce ("Dr. Boyce") as an expert witness at trial. Mission Hospital's motions came on for hearing on 21 November 2022. On 3 January 2023, the trial court granted Mission Hospital's motion for summary judgment and dismissed all of Plaintiff's claims against Mission Hospital with prejudice. Plaintiffs filed written notice of appeal on 13 January 2023.

II. Analysis

Plaintiffs argue the trial court erred by granting Mission Hospital's motion for summary judgment because there are genuine issues of material fact regarding whether it committed medical malpractice. Plaintiffs also argue that to the extent the trial court dismissed their claims on the basis of a failure to comply with N.C. R. Civ. P. 9(j), the trial court erred because their expert witness was willing to testify Mission Hospital did not comply with the applicable standard of care. We address the issues in turn.

A. Interlocutory Appeal

Plaintiffs argue that although the summary judgment order is not certified for immediate appeal pursuant to N.C. R. Civ. P. 54(b), it is immediately appealable under the "substantial right" doctrine. N.C. Gen. Stat. § 1-277(a) (2023) (allowing appeal from an order of a superior court that affects a substantial right); N.C. Gen. Stat. § 7A-27(b)(3)(a) (2023) (same).

Addressing interlocutory appeals, this Court has explained:

Our Supreme Court has held that a grant of summary judgment as to fewer than all of the defendants affects a substantial right when there is the possibility of inconsistent verdicts, stating that it is the plaintiff's right to have one jury decide whether the conduct of one, some, all or none of the defendants caused his injuries. This Court has created a two-part test to show that a substantial right is affected, requiring a party to show (1) the same factual issues would be present in both trials and (2) the possibility of inconsistent verdicts on those issues exist.

Camp v. Leonard, 133 N.C.App. 554, 557-58, 515 S.E.2d 909, 912 (1999) (citation, quotation marks, and ellipsis omitted).

Specifically, Plaintiffs argue a risk of inconsistent verdicts exists if Plaintiffs and the DePaolo Defendants were to proceed to trial and if this Court subsequently were to reverse the trial court's grant of summary judgment to Mission Hospital. We agree. First, the same factual issues exist with regard to both the DePaolo Defendants and Mission Hospital. Plaintiffs' claim of medical malpractice arises out of one procedure, the hip replacement. Dr. DePaolo performed the hip replacement assisted by nurses employed by Mission Hospital. One of the prominent issues in the case is the factual issue of causation-that is, whether Dr. DePaolo committed medical malpractice by improper retractor placement or whether a nurse employed by Mission Hospital committed medical malpractice by implementing improper leg traction. Therefore, the same factual issues would be present in both trials. As for the possibility of inconsistent verdicts, two different juries potentially could reach conflicting verdicts in this case. For example, the first jury could find only the DePaolo Defendants liable for malpractice, while the second jury could find Mission Hospital, through the actions of one or more of its nurses, solely or jointly and severally liable with the DePaolo Defendants. Therefore, the possibility of inconsistent verdicts exists. Accordingly, the trial court's grant of summary judgment as to fewer than all defendants affects Plaintiffs' substantial right.

In contesting this Court addressing Plaintiffs' interlocutory appeal, Mission Hospital argues this Court's holding in Myers v. Barringer stands for the proposition that because Mission Hospital provided a facility for Dr. DePaolo to practice medicine, the factual issues and relevant standards of care are different as to the DePaolo Defendants and Mission Hospital. 101 N.C.App. 168, 398 S.E.2d 615 (1990). Myers involved the plaintiffs' claims of medical malpractice against two doctors, an anesthesiologist, Wake Anesthesiology Associates, Inc. ("Anesthesiology Associates"), and Wake Psychiatric Hospital, Inc. ("Holly Hill"). Id. at 170, 398 S.E.2d at 616. One of the plaintiffs, Mr. Myers, received treatment at Holly Hill for depression and migraine headaches. His primary doctor recommended electroconvulsive therapy ("ECT"). Id. The plaintiffs sued Mr. Myers's primary doctor for misdiagnosis and negligently failing to recommend proper treatment; the doctor who administered the ECT treatments for negligent administration of such treatment, failure to adequately diagnose Mr. Myers's condition, and failure to recommend proper treatment; the anesthesiologist and Anesthesiology Associates for improperly advising Mr. Myers of the side effects associated with ECT and for taking improper precautions; and Holly Hill because, through its employees, it allegedly failed to document and ensure Mr. Myers's treating physicians were aware of his complaints of pain and soreness and for failing to properly advise him of certain risks associated with the treatments. Id. at 170-71, 398 S.E.2d at 616-17.

The trial court granted summary judgment in favor of Holly Hill. Id. at 170, 398 S.E.2d at 616. The plaintiffs appealed that interlocutory order, and this Court analyzed whether the order affected a substantial right of the plaintiffs. Id. at 172, 398 S.E.2d at 617. This Court held the interlocutory order did not implicate a substantial right because the plaintiffs' claims

involve[d] medical malpractice claims against defendants, each of whom had a separate and distinct contract from the others and each of whom owed a different duty to the Myers. An independent contractor physician stands legally apart from a hospital which provides an environment for the physician to practice medicine. Thus, the claim against Holly Hill involves issues which are not factually the same, particularly the duty a hospital owes a patient and the duty owed by an independent contractor physician to his patient, and this appeal is premature.

Id. at 173, 398 S.E.2d at 618 (emphasis added) (citation omitted).

However Myers is distinguishable from the case sub judice. The plaintiffs in Myers brought claims of medical malpractice based on distinct theories. For example, they claimed Mr. Myers's primary doctor committed medical malpractice through misdiagnosis and negligently failing to recommend proper treatment. Their theory of Holly Hill's medical malpractice was separate and distinct. The plaintiffs alleged Holly Hill, "through its employees, failed to document and [e]nsure that the physicians treating Mr. Myers were aware of his complaints of pain and soreness . . . . [and] that Holly Hill...