A number of intriguing opinions were issued by the Court of Appeals in its Tuesday, April 17, release. Rather than pouncing on one, I thought I would take a quick dip into a few.
Barron v. Rafidi, an unpublished opinion with a pro se appellant, reinforces the importance of the Rules of Appellate Procedure. The case arose as a dispute over real property. The trial court granted summary judgment for defendant and ordered plaintiffs removed from the property. The COA dismissed plaintiff-appellants’ pro se appeal even though defendant-appellee did not file an appellate brief. Citing Dogwood, the COA noted that three types of rules violation exist: waiver at the trial court, defects in appellate jurisdiction, and gross violation of nonjurisdictional requirements. Plaintiffs violated numerous nonjurisdictional rules, including failing to include a procedural history of the case or any citation to authority. The COA did not have to determine whether these defects were “gross” because plaintiffs also violated jurisdictional rules, such as failing to specify the order appealed from or the court to which the appeal was taken. Plaintiffs’ pro se status provided no protection.
Bluitt v. Wake Forest University Baptist Medical Center, et al., reminds us of the importance of a N.C. Rule of Civil Procedure 9(j) certification in a medical malpractice case. Plaintiff received general anesthesia while undergoing a cardiac ablation at defendant Baptist. She awoke to find a third-degree burn on her back. Plaintiff sued defendants for negligence but her complaint did not include a Rule 9(j) certification that her medical care had been reviewed by an expert. Instead, plaintiff cited Rule 9(j)(3), under which an expert’s certification is not required if the suit relies on res ipsa loquitur. The trial court granted defendants’ motion to dismiss for failure to comply with Rule 9(j).
The Court of Appeals affirmed. In support of the motion to dismiss, defendant Baptist had presented affidavits from four experts to the effect that burns were a risk in a cardiac ablation that can occur without negligence by the physician executing the procedure. The COA held that the trial court’s consideration of these affidavits while deciding defendant’s 9(j) motion to dismiss did not convert it into a motion for summary judgment. Stating that it would affirm dismissal of medical malpractice claims based upon res ipsa loquitur “where both the standard of care and its breach must be established by expert testimony,” the COA held that the facts alleged by plaintiff in the complaint defeated a res ipsa loquitur claim because plaintiff would not be able to show without an expert that her injury was of the sort that did not occur in the absence of negligence.
This case emphasizes once more the importance of experts in medical malpractice cases. Whatever the merits of plaintiff’s claims, consultation with a medical expert might have helped determine the threshold question whether res ipsa loquitur could even apply.
Disclaimer: our firm represented the defendants in this case.
Chambers v. Moses H. Cone Memorial Hospital, et al. gives useful guidance on class action lawsuits. Plaintiff went to defendant hospital for an emergency procedure. While there, he signed a form stating that he was financially responsible for, and agreed to pay, defendants’ regular rates and terms. When plaintiff failed to pay the $14,578.14 that defendants billed, defendants brought suit in North Carolina district court.
Plaintiff responded by filing a class action in superior court that, when amended, alleged that uninsured patients seeking emergency medical care were charged at the rates set out on a “chargemaster” list, while insurance companies, managed care organizations, and insured patients could negotiate rates lower than those quoted on the “chargemaster” list. Plaintiff sought a declaratory judgment as to the interpretation of the price term in defendant hospital’s form when signed by self-insured emergency care patients. Plaintiff asked the superior court to declare that defendant hospital’s form entitled it to no more than the reasonable value of the treatment or services provided. Meanwhile, defendant hospital dismissed its claims against plaintiff and then moved to dismiss plaintiff’s amended class action complaint, citing N.C. Rule of Civil Procedure 12(b)(1) (lack of subject matter jurisdiction). The trial court allowed defendant hospital’s motion on the grounds of mootness.
The COA affirmed. Plaintiff argued that he had a right to continue pursuing his purported class action, pursuant to N.C. Rule of Civil Procedure 23. The COA observed that only those belonging to a class may bring a class action. Plaintiff argued that he was a member of a class consisting of individuals who received emergency care at defendant hospital, whose bills were not covered by insurance or a government program, and who were neither granted a discount under defendant hospital’s charity policies nor had their bills written off in full by the hospital.
The COA noted that after plaintiff amended his original complaint to dismiss such allegations as breach of contract and breach of covenant of good faith and fair dealing, leaving only his cause of action for declaratory judgment, defendant hospital first quit trying to recover plaintiff’s outstanding balance from him and then dismissed all its claims against plaintiff. The COA observed that because plaintiff has no claim against defendant hospital and the hospital has no claim against plaintiff, plaintiff is no longer a member of the class he seeks to represent. As a result, the trial court correctly found that plaintiff’s action was moot.
The COA’s discussion in this case of class action and mootness doctrines is worth reading.
Cohen v Franklin County Schools, et al. explores the definition of a workplace injury. Plaintiff was a teacher in defendant schools. As part of her job, she was routinely observed and evaluated by her school’s principal. The principal realized that his 11 October 2013 evaluation of plaintiff would be unfavorable, so he asked a member of defendant’s central office to sit in during the session. As anticipated, the evaluation session was contentious. Plaintiff alleged that she began to experience “horrible head pain” during the session. Three days later, plaintiff was diagnosed as having suffered a stroke.
Plaintiff initiated a workers’ compensation claim by filing a Notice of Accident to Employer. Defendant denied the claim. The deputy commissioner found that the evaluation session was an ordinary incident of plaintiff’s employment and that plaintiff did not suffer an injury by accident. The Full Commission affirmed the deputy commissioner’s decision.
The COA affirmed. It first considered whether the Commission correctly concluded that plaintiff’s injury was not the result of an “accident” as that term is used in the Workers’ Compensation Act. In the words of the Act, did plaintiff experience “an unlooked for and untoward event which is not expected or designed by the injured employee?” After reviewing several pages of findings of fact by the Commission, none of which the plaintiff challenged, the COA held that a tense meeting between an employee and the employee’s supervisor does not constitute an accident, even when the employee experiences (usually stress-related) symptoms during and after the encounter. While the COA observed that unusual circumstances could conceivably cause a similar meeting to evolve into an “accident” under the Act, no such circumstances occurred here.
While the facts here are somewhat unusual and plaintiff’s condition obviously serious, this case underlines the importance of the Commission’s fact-finding function. Because those findings were unchallenged (and maybe they could not have been; I’m not questioning the tactical and strategic decisions made by counsel for plaintiff), the ultimate outcome was pretty predictable.
State v. Van is an unpublished but noteworthy criminal opinion. The short version is that defendant’s case got lost in the machinery for nearly two decades as he sought to appeal a murder sentence imposed on him in 1999. Read the opinion to get the details but just about everything went wrong. The notice of appeal was not filed for six years and the record on appeal was not filed until twelve years after the COA granted a writ of certiorari to review the untimely appeal. In the meantime, the ability was lost both to produce a transcript and to determine steps taken by various players to preserve defendant’s right to appellate review. The COA quite sensibly remanded the case to the Superior Court to be sorted out. As one who has practiced criminal law on both sides of the aisle, I have a lot of respect for lawyers who take on these difficult cases. Thumbs up both to defendant’s lawyer and the COA panel.
Finally, check out Cole v. Bonaparte’s Retreat Property Owners Association for proof that old Supreme Court of North Carolina precedent still has teeth. Judge Inman’s contemporary talent for inserting annotated plats and surveys into an appellate opinion is on full display.