Henderson v. LeBauer , 101 N.C. App. 255 ( 1991 )

399 S.E.2d 142 (1991) 101 N.C. App. 255

Constance A. HENDERSON, Executrix of the Estate of Virgil E. Henderson, Plaintiff,
v.
E. Joseph LeBAUER, Bruce R. Brodie, Jeffrey Katz, Drs. LeBauer, Weintraub, Brodie, Patterson & Associates, P.A., David L. Rinehuls, Charles M. Hassell, and the Moses H. Cone Memorial Hospital, Defendants.

No. 9018SC332.

Court of Appeals of North Carolina.

January 15, 1991.

Hatfield, Mountcastle, Deal & Van Zandt by John P. Van Zandt, III, Winston-Salem, for plaintiff-appellant/cross-appellee.

Tuggle, Duggins, Meschan & Elrod, P.A. by Joseph E. Elrod, III and Robert A. Ford, Greensboro, for defendant-appellee Charles M. Hassell and defendant-appellee/cross-appellant Moses H. Cone Memorial Hospital.

Bell, Davis & Pitt, P.A. by William Kearns Davis and J. Dennis Bailey, Winston-Salem, for defendants-appellees E. Joseph LeBauer, Bruce R. Brodie, Jeffrey Katz, Drs. LeBauer, Weintraub, Brodie, Patterson & Associates, P.A., and David L. Rinehuls.

WELLS, Judge.

When a motion for summary judgment is granted, "the critical questions for determination upon appeal are whether on the basis of the materials presented to the trial court, there is a genuine issue as to any material fact and whether the movant is entitled to judgment as a matter of law." Oliver v. Roberts, 49 N.C.App. 311, 271 S.E.2d 399 (1980), cert. denied, 276 S.E.2d 283 (N.C.1981). Plaintiff claims that on the basis of the materials presented to the trial court, genuine issues of material fact remain regarding her allegations of conspiracy, the liability of defendant Hassell, and her claim for punitive damages. Defendant Hospital also assigns error to the denial of its motion for summary judgment on the issue of its alleged medical negligence. We affirm in part and reverse in part.

Defendants have correctly pointed out that there is no action for civil conspiracy recognized in North Carolina. In Johnson v. Beverly-Hanks & Associates, Inc., 97 N.C.App. 335, 388 S.E.2d 584, disc. review on additional issues denied, 326 N.C. 482, 392 S.E.2d 90 (1990), we noted the North Carolina rule:

[a]ccurately speaking, there is no such thing as a civil action for conspiracy. The action is for damages caused by acts committed pursuant to a formed conspiracy, rather than by the conspiracy itself; and unless something is actually done by one or more of the conspirators which results in damage, no civil action lies against anyone. The gist of the civil action for conspiracy is the act or acts committed in pursuance thereof—the damage—not the conspiracy or the combination. The combination may be of no consequence except as bearing upon rules of evidence or the persons liable. (Citations omitted).

Defendant is not seeking damages, however, arising out of the alleged conspiracy or combination. She is seeking damages arising out of acts she claims were committed pursuant to it—covering up and misrepresenting the cause of her husband's death. In Henry v. Deen, 310 N.C. 75, 310 S.E.2d 326 (1984), which also involved a wrongful death action and allegations of a cover-up, the Court held that actions taken pursuant to a conspiracy which tended to obstruct, impede or hinder public or legal justice were actionable.

A threshold requirement in any cause of action for damages caused by acts committed pursuant to a conspiracy must be the showing that a conspiracy in fact existed. The existence of a conspiracy requires proof of an agreement between two or more persons. Fox v. Wilson, 85 N.C. App. 292, 354 S.E.2d 737 (1987). Although civil liability for conspiracy may be established by circumstantial evidence, the evidence of the agreement must be sufficient to create more than a suspicion or conjecture in order to justify submission to a jury. Dickens v. Puryear, 302 N.C. 437, 276 S.E.2d 325 (1981).

Plaintiff has not forecast sufficient evidence that an agreement was reached between any of the defendants to perform the acts she complains of. She has pointed to a note on a copy of defendant Hassell's letter which contained his preliminary diagnoses which states "Joe—call me about this," various phone conversations, and a memo from Hassell to LeBauer stating "Joe: here is the ``uncorrected' copy of autopsy on Virgil Henderson. I will be mailing it to his wife, Mrs. Constance Henderson, in the next few days. Please contact me if you have a question or see an error." Plaintiff has also produced a great deal of circumstantial evidence which she claims points to a conspiracy, but we hold that this evidence does not reasonably lead to anything other than suspicion or conjecture that there was ever any underlying agreement. The trial court did not err in rendering judgment on this issue.

Plaintiff also assigns error to the entry of summary judgment as to all claims for punitive damages. Plaintiff's claims are grounded in her conspiracy claim and allegations of gross negligence against all defendants. As stated, we affirm the court's judgment that the offer of proof does not raise a jury question as to the existence of a conspiracy. Any issue of punitive damages, then, must arise out of gross negligence.

A personal representative may bring a claim in a wrongful death action for "[s]uch punitive damages as the decedent could have recovered had he survived, and punitive damages for wrongfully causing the death of the decedent through maliciousness, wilful or wanton injury, or gross negligence." N.C.Gen.Stat. § 28A-18-2 (1982). While there is authority which equates gross negligence with wanton conduct, see Bullins v. Schmidt, 322 N.C. 580, 369 S.E.2d 601 (1988), we cannot apply this definition in the context of this statute. "By providing for recovery of punitive damages upon a showing of ``maliciousness, wilful or wanton injury, or gross negligence' it appears that the General Assembly intended to establish three separate categories of conduct which would afford a recovery." Cole v. Duke Power Co., 81 N.C.App. 213, 344 S.E.2d 130, disc. review denied, 318 N.C. 281, 347 S.E.2d 462 (1986). N.C.Gen.Stat. § 28A-18-2 allows recovery of punitive damages in wrongful death actions involving gross negligence even when no wilful or wanton conduct was involved. Id. To establish gross negligence, the plaintiff must show negligence of an aggravated character. Id.

In a medical malpractice action, generally there must be expert testimony that tends to show a deviation from the normal standard of care. Assaad v. Thomas, 87 N.C.App. 276, 360 S.E.2d 503 (1987), disc. review denied, 321 N.C. 471, 364 S.E.2d 917, reh'g denied, 321 N.C. 747, 366 S.E.2d 856 (1988). Plaintiff's offer of proof included affidavits and depositions from many medical experts. Dr. Thomas A. Preston stated in his affidavit that:

The attending clinicians were negligent in not noting the severity of anemia, and treating it properly. Not only did the anemia go untreated, but the patient had a history of a GI bleed in 1982, which would make any finding of anemia all the more urgent. The patient was never treated with packed red blood cells, despite a diagnosis of anemia and grossly insufficient treatment of ferrous sulfate. In summary, there was negligence in not recognizing the severity of the anemia and treating it sufficiently, and negligence in not diagnosing and treating congestive heart failure. I will testify that negligence in these areas was a proximate cause to the patient's death. The care of the attending physicians was far below the standard of practice in any community in this country, and even minimal attention to either the congestive heart failure or the anemia would more than likely have saved the life of Virgil E. Henderson. (Emphasis added).

Dr. Embree H. Blackard stated in his affidavit that:

There was an intent to send him home with his hemoglobin and hematocrit still not reversed and on the upside. Therefore one could anticipate further hypoxia, further effect on increased cardiac output and further danger to an individual with a compromised cardiac status. Diagnosing the anemia and ordering ferrous sulfate indicated that they were aware of the anemia. However, it was a grossly inappropriate treatment. Not to have given packed cells well before his fatal event is substandard and was a proximate cause of his death. (Emphasis added).

There was an official typed catheter report indicating a mild degree of obstruction. However, the progress notes in the chart indicated a more severe degree of narrowing. This would correlate with the autopsy findings. To have one catheterization report with such divergent results is substantard and indicates a sloppiness. The official typed report would be the one given the most weight by the subsequent doctors and this is the one that is abnormally reported. This is quite substandard. This would serve to have the effect of misleading subsequent doctors if their judgment relied on this report. (Emphasis added).

We hold that this expert testimony was a sufficient forecast of evidence to survive a summary judgment motion as to whether the treatment provided by defendants LeBauer, Brodie, and Katz rose to the level of "aggravated negligence" or an "extreme departure from the ordinary standard of conduct." See Cole, supra. LeBauer, Brodie, Katz, and the defendant professional association have admitted that these physicians were employed by Drs. LeBauer, Weintraub, Brodie, Patterson & Associates, P.A. and acted in the course and scope of their employment. Summary judgment on the punitive damages issue, then, was also inappropriately granted in favor of the association. See Mazza v. Medical Mut. Ins. Co. of North Carolina, 311 N.C. 621, 319 S.E.2d 217 (1984); Binder v. General Motors Acceptance Corp., 222 N.C. 512, 23 S.E.2d 894 (1943). We affirm the judgment of the trial court as to defendants Rinehuls, Hassell and Hospital.

Plaintiff also assigns error to the entry of summary judgment on all claims against defendant Hassell. In both her complaint and amended complaint, plaintiff's claims against Hassell focus solely on the existence of a conspiracy. In her brief, she attempts to argue that Hassell was negligent and grossly negligent in supervising the Hospital's "quality assurance program," based primarily on the fact that there is no notation in the laboratory records that decedent's "panic-level" hemoglobin was reported to any physician or nurse. She also argues that Hassell was negligent in conducting his investigation into the cause of death. We find nothing in the record which would indicate that this theory of liability was asserted in the complaint or in the trial court. The court's order indicates to the contrary, stating:

IT IS THEREFORE ORDERED AND ADJUDGED that the defendants' motions as to all claims for conspiracy, to include all claims against defendant Charles M. Hassell and all claims alleged in plaintiff's fourth claim for relief, are allowed and the same are dismissed with prejudice. . . .

We are therefore left to assume, then, that plaintiff is asking us to pass on these theories of liability for the first time on appeal. This we cannot do. Bryant v. Eagan, 88 N.C.App. 741, 364 S.E.2d 704, cert. denied, 322 N.C. 325, 368 S.E.2d 863 (1988). The trial court's order is affirmed as written regarding Hassell.

Defendant Hospital's appeal is interlocutory. The denial of a motion for summary judgment is not a final judgment, and is generally not immediately appealable, even if the trial court has attempted to certify it for appeal under Rule 54(b) of the North Carolina Rules of Civil Procedure. Lamb v. Wedgewood South Corp., 308 N.C. 419, 302 S.E.2d 868 (1983). We fail to see how any substantial right will be lost by a trial of the issues. The Hospital's appeal is therefore dismissed.

As to plaintiff's appeal,

Reversed in part, affirmed in part.

As to defendant Hospital's appeal,

Dismissed.

COZORT and LEWIS, JJ., concur.