Mull v. N.C. Department of Correction ( 2001 )

The Full Commission has reviewed the prior Order of the Deputy Commissioner, plaintiffs Form 44 Application for Review, and plaintiffs claim for damages pursuant to G.S. 143-391 et seq. The appealing party has not shown good ground to reconsider the dismissal. The Full Commission affirms and adopts the Decision and Order of Deputy Commissioner Ford.

*********** Plaintiff filed a complaint alleging that he was injured during an altercation with another prison inmate and was denied medical treatment. A plaintiff may not recover in a medical malpractice claim where he cannot show the standard of care owed and that the care received did not meet such standard. G.S. 90-21.12. Expert testimony is necessary to establish this standard of care. Warren v. Canal Industries, Inc., 61 N.C. app. 211, 200 S.E.2d 557 (1983). Plaintiff has failed to produce any medical evidence or expert opinion to establish his claim of malpractice.

Plaintiff also alleged that he was intentionally assaulted by an officer with the Department of Correction. Injuries intentionally inflicted by employees of a State agency are not compensable under the Act. G.S. 143-291; Davis v. North Carolina State Hwy. Commn, 271 N.C. 405,156 S.E.2d 685 (1967). Plaintiff has failed to allege negligence on the part of an employee or agent of the Department of Correction.

Plaintiffs claims are hereby DISMISSED WITH PREJUDICE.

S/______________ RENE C. RIGGSBEE COMMISSIONER

CONCURRING:

S/_____________ THOMAS J. BOLCH COMMISSIONER

S/_______________ DIANNE C. SELLERS COMMISSIONER