229 N.C. App. 19
N.C. Ct. App.2013Background
- Dr. Kohn is an OB/GYN who applied for hospital staff privileges at Moore Regional Hospital; ABOG certification obtained in 2006.
- Avery and Krieger are established patients who would prefer Dr. Kohn for OB/GYN surgery and hospital care at Moore Regional Hospital.
- Defendant denied Kohn’s staff privileges in 2010 due to bylaw residency criteria not met by Dr. Kohn’s credentialing path.
- Plaintiffs filed a 2012 Moore County complaint alleging, among other claims, violation of the public utility doctrine by denying privileges.
- Trial court dismissed the public utility claim for failure to state a claim and Avery/Krieger for lack of standing; Kohn’s remaining claims were dismissed.
- On appeal, court affirmed dismissal, holding defendant is not a public utility under current North Carolina law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendant qualifies as a public utility | Kohn argues by statute, Edmisten-based test, or public-standing status. | Defendant contends it does not meet NC public utility statute. | Not a public utility; no doctrine violation. |
| Whether the public utility doctrine applies to hospitals | Edmisten-test supports public utility status for a hospital serving the public. | Edmisten does not expand to hospital entities; statute controls. | Doctrine not applicable to defendant. |
| Whether Avery and Krieger had standing after dismissal | Standing remains despite other dismissals. | If no live claims remain, standing is moot. | Standing unnecessary to address; affirm dismissal. |
Key Cases Cited
- Utilities Comm’n v. Water Co., 248 N.C. 27 (1958) (public utility must serve alike all who are similarly circumstanced)
- State ex rel. Utilities Comm’n v. Edmisten, 40 N.C. App. 109 (1979) (test whether public may be enjoyed by right or by permission)
- Edmisten, 252 S.E.2d 516 (1979) (expanded discussion of public utility status and related tests)
- Stanback v. Stanback, 297 N.C. 181 (1979) (12(b)(6) standard; de novo review of pleadings)
- Leary v. N.C. Forest Prods., Inc., 157 N.C. App. 396 (2003) (de novo review for Rule 12(b)(6))