DocketNumber: No. I.C. NO. TA-21540.
Judges: <center> DECISION AND ORDER for the Full Commission by TAMMY R. NANCE, Commissioner, N.C. Industrial Commission.</center>
Filed Date: 9/13/2011
Status: Precedential
Modified Date: 7/6/2016
2. On December 17, 2008, Plaintiff was seen in sick call for complaints of stomach irritation. He was charged for that visit in accordance with D.O.C. policy.
2. On December 22, 2008, Plaintiff was seen in sick call and in accordance with D.O.C. policy was not charged because this appointment was a follow-up from a previous sick call.
3. On December 24, 2008, Plaintiff declared an emergency medical sick call for a nosebleed. He was charged for that visit in accordance with D.O.C. policy.
4. On February 23, 2009, Plaintiff was seen in sick call for complaints of blacking out and nose bleeds along with a request for medication renewals. He was charged for that visit in accordance with D.O.C. policy.
5. On February 25, 2009, Plaintiff was seen in sick call, but was not charged for the visit per D.O.C. policy.
6. On March 4, 2009, Plaintiff was seen in sick call for complaints of calluses and ear pain. He was charged for that visit in accordance with D.O.C. policy.
7. On March 8, 2009, Plaintiff was seen in sick call for Dr. 2 Shoes and hearing problems. Plaintiff was not charged for that visit. *Page 3
8. On March 13, 2009, Plaintiff was seen in sick call for complaints of back pain. He was charged for that visit in accordance with D.O.C. policy.
9. Plaintiff has not produced sufficient evidence to prove that Defendant, by or through its employees, breached any duty owed to him or was negligent in handling Plaintiff's trust account funds.
10. The Affidavit Plaintiff filed to initiate this claim did not comply with Rule 9(j) of the Rules of Civil Procedure. Moreover, Plaintiff presented no evidence at his hearing that would support a finding that the medical staff at Johnston Correctional failed to comply with the applicable standard of care.
2. Under the provisions of the Tort Claims Act, negligence is determined by the same rules applicable to private parties.Bolkhir v. N.C. State University,
3. In order to recover on a civil claim for negligence, a claimant must prove: (1) the existence of a duty to him; (2) a breach of that duty by the defendant (the named employees *Page 4
thereof in a tort claim); (3) injury sustained; and (4) that the injury sustained was a proximate result of the breach of duty.Pulley v. Rex Hospital,
4. In the instant case, Plaintiff failed to prove that any employee of Defendant breached a duty of care owed to him, either in their treatment of him when he sought medical treatment or in making charges to his trust account in accordance with established Department of Correction policy.
5. Rule 9(j) of the Rules of Civil Procedure provides that "[a]ny complaint alleging medical malpractice by a health care provider . . . in failing to comply with the applicable standard of care under G.S. §
2. Plaintiff SHALL HAVE AND RECOVER NOTHING from Defendant.
3. Each party shall pay its own cost.
This the ___ day of September, 2011. *Page 5
S/___________________ TAMMY R. NANCE COMMISSIONER
CONCURRING:
*Page 1S/_____________ BERNADINE S. BALLANCE COMMISSIONER
S/_____________ LINDA CHEATHAM COMMISSIONER