Peter v. Vullo
758 S.E.2d 431
N.C. Ct. App.2014Background
- Plaintiffs sue Dr. Vullo and hospital/medical groups for medical malpractice arising from December 22, 2010 anesthesia care during Ms. Peter's right ankle surgery at CMC Mercy.
- Plaintiffs allege improper nerve blocks (popliteal and saphenous) with fentanyl/versed sedation, causing permanent right-leg pain and numbness.
- Defendants moved for summary judgment on February 25, 2013, asserting plaintiffs failed to designate a qualified expert and lacked a prima facie case under G.S. 90-21.12.
- The trial court granted summary judgment on April 12, 2013, and noted Wachovia Mortgage Co. v. Autry-Barker-Spurrier Real Estate, Inc. to avoid creating issues of fact via conflicting affidavits.
- On appeal, the NC Court of Appeals reverses in part and remands: Fiamengo affidavit properly considered, and genuine issues remain on standard of care, causation, and damages; hospital liability via apparent agency is analyzed; loss of consortium disposition modified.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether summary judgment against doctors was proper. | Peter argues a valid medical malpractice claim exists. | Doctors contend lack of qualified expert and insufficient prima facie case. | Reversed; existence of genuine issues of material fact to go to trial. |
| Whether Dr. Fiamengo’s affidavit could defeat summary judgment. | Fiamengo’s community-standard testimony creates triable issue. | Affidavit contradicted deposition; improper under Wachovia rule. | Reversed; affidavit properly considered to show community standard and breach. |
| Whether hospital defendants are liable under apparent agency. | Hospitals held themselves out as providers; patient relied on them. | Consent/authorization forms show independent contractors; no agency. | Affirmed in part; no actual apparent agency liability based on record; distinctions from Diggs |
| Whether loss of consortium claim survives after partial dismissal. | Loss of consortium derivative of negligent act should remain. | If doctors’ negligence is not established, consortium claim fails. | Loss of consortium claim reversed in light of doctor liability outcome. |
Key Cases Cited
- Smith v. Whitmer, 159 N.C. App. 192, 582 S.E.2d 669 (2003) (N.C. Ct. App. 2003) (standard-of-care evidence requires expert testimony from same/similar community)
- Robinson v. Duke Univ. Health Systems, N.C. App. , 747 S.E.2d 321 (2013) (N.C. Ct. App. 2013) (expert testimony can establish breach, proximate causation, and damages)
- Wachovia Mortgage Co. v. Autry-Barker-Spurrier Real Estate, Inc., 39 N.C. App. 1, 249 S.E.2d 727 (1978) (N.C. Ct. App. 1978) (cannot create issue of fact by contradicting prior sworn testimony in summary judgment)
- Diggs v. Novant Health, Inc., 177 N.C. App. 290, 628 S.E.2d 851 (2006) (N.C. Ct. App. 2006) (apparent agency evidence can establish hospital liability when hospital holds itself out)
- Ray v. Forgy, N.C. App. , 744 S.E.2d 468 (2013) (N.C. Ct. App. 2013) (consent forms indicating independent contractors negate implied agency)
- Roush v. Kennon, 188 N.C. App. 570, 656 S.E.2d 603 (2008) (N.C. Ct. App. 2008) (post-deposition inquiry can supplement expert familiarity with local standard)
- Diggs v. Novant Health, Inc., 177 N.C. App. 290, 628 S.E.2d 851 (2006) (N.C. Ct. App. 2006) (distinguishes apparent vs. actual agency)
- Hylton v. Koontz, 138 N.C. App. 629, 532 S.E.2d 252 (2000) (N.C. Ct. App. 2000) (agency determination generally a jury question unless only one inference)