The Estate of Donna S. Ray and Thomas D. Ray, individually, (together, “plaintiffs”) filed suit on 25 August 2004 against Dr. Keith Forgy, M.D. (“Dr. Forgy”), Grace Hospital, Inc., Blue Ridge Healthcare System, Inc., Carolinas Healthcare System, Inc., and Grace Healthcare System, Inc., (together, “hospital defendants”) alleging negligence by Dr. Forgy and by defendants under the theories of apparent agency and corporate negligence. After initially denying the hospital defendants’ motion to dismiss the case pursuant to N.C.G.S. § 1A-1, Rule 9(j), the trial court later granted hospital defendants’ motion for summary judgment on 21 December 2007. The trial court certified the case for immediate appeal to this Court, which dismissed the appeal as interlocutory in an opinion filed 25 March 2009. Plaintiffs and Dr. Forgy participated in a binding arbitration in 2012, which ultimately resulted in judgment for the plaintiffs. Plаintiffs now appeal the 21 December 2007 grant of hospital defendants’ summary judgment motion, as the claims against Dr. Forgy have been resolved and the case is now ripe for appeal. After careful consideration, we reverse and remand for further proceedings.
On 7 August 2003, 43-year-old Donna Ray visited her primary care physician’s office, Burke Primary Care, complaining of abdominal pain, nausea, and vomiting. The doctor who evaluated Ray admitted her to Grace Hospital that day. After various tests over a periоd of five days, a Burke Primary Care physician requested Dr. Forgy provide a surgical consult for Ray. Dr. Forgy evaluated Ray and recommended she undergo a gastroscopy and colonoscopy. Prior to the tests, Ray signed a consent form which designated Dr. Forgy as “my physician,” and separately, “Grace Hospital Personnel” as an additional healthcare provider. After the tests, Dr. Forgy recommended Ray undergo a laparoscopic cholecystectomy to surgically remove
Shortly thereafter, Ray visited Dr. Forgy at his private medical office on 22 August 2003 reporting difficulty urinating and abdominal pain. Dr. Forgy inserted a catheter, which relieved the abdominal pain. Ray saw Dr. Forgy at his office two more times; he rеmoved the catheter on 25 August and followed up with Ray the following day, before ultimately discharging her from his care with instructions to return if she had any questions or problems that she suspected were related to her cholecystectomy.
On 9 September 2003, Ray was taken tо the Grace Hospital Emergency Department complaining of abdominal pain, nausea, vomiting, and difficulty urinating, where various tests were performed. A few days later, a Burke Primary Care physician requested that Dr. Forgy evaluate Ray again. After performing several tests, Dr. Forgy suspected that Ray was suffering from a biliary leak, a complication of the gallbladder removal procedure. Ray’s husband, Thomas Ray, signed a consent form on her behalf authorizing Dr. Forgy to perform a laparotomy, an exploratory abdominal surgery. Dr. Forgy’s post-operative report concluded that there was “no biliary leak.” Ray’s condition quickly worsened after the laparotomy and she was transferred to the Intensive Care Unit at Frye Regional Medical Center on 16 September 2003. Insertion of a drain at Frye suggested that Ray did in fact have a biliary leak or an injury to the liver. On 30 October 2003, Ray was transferred to the Intensive Care Unit at UNC-Chapel Hill, where she remained until her death on 11 July 2004.
On appeal, plaintiffs contend the trial court erred in granting summary judgment for the hospitаl defendants because a genuine issue of material fact exists with regard to two theories of liability: apparent agency and corporate negligence.
“Our standard of review of an appeal from summary judgment is de novo; such judgment is appropriate only when the record shows that ‘there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.’ ” In re Will of Jones,
I.
Plaintiffs contend there is a genuine issue of material fact as to whether Dr. Forgy was the hospital defendants’ apparent agent, thereby rendering such defendants vicariously liable for his acts through agency by estoppel. Specifically, plaintiffs argue there was no notice that Dr. Forgy was an independent contractor because his picture, namе, and telephone number were advertised in defendants’ brochure, and Dr. Forgy never told Ray or her husband that he was not an employee of the hospital. We disagree.
“Under the doctrine of respondeat superior, a hospital is liable for the negligence of a physician or surgeon acting as its agent.” Hylton v. Koontz,
a plaintiff must prove that (1) the hospital has held itself out as providing medical services, (2) the plaintiff looked to the hospital rather than the individual mеdical provider to perform those services, and (3) the patient accepted those services in the reasonable belief that the services werebeing rendered by the hospital or by its employees.
Diggs v. Novant Health, Inc.,
Here, evidence before the trial court at the time of defendants’ motion for summary judgment suggests thеre is no issue of material fact whether Ray looked to the hospital rather than to the individual medical provider, Dr. Forgy, to perform her surgeries. Before the gastroscopy and colonoscopy, and the laparoscopic cholecystectomy, Ray signed request for treatment forms. In a section labeled “Designation^),” she checked the box labeled “Physician” and wrote in “Dr. Forgy.” Additionally, Ray separately checked a box labeled “Grace Hospital Personnel.” Thomas Ray also signed nearly identical consent forms before allowing a catheter to be placed and allowing a drain to be put in his wife’s abdomen. This suggests that Ray looked to Dr. Forgy separate and distinct from Grace Hospital and its personnel to receive medical treatment. See Diggs,
Moreover, page two of the release form, in large print just above the signature line, provides explicit notice regarding the employment status of Grace Hospital physicians:
I understand that many of the physicians on the staff of Grace Hospital are not employees or agents of the hospital, but rather, are independent contractors who have been granted the privilege of using its facilities for the care and treatment of patients. . . . My signature below indicates that I have read and understand the above information.
Therefore, it would not be reasonable for a patient presented with this form to аssume that Dr. Forgy was a hospital employee. Cf. Diggs,
II.
Plaintiffs next contend there is a genuine issue of material fact as to whether the hosрital defendants breached a duty to Ray when they re-credentialed Dr. Forgy as a member of the medical staff in 2001, did not adequately monitor or supervise him, and failed to investigate his history of medical negligence claims.
“[T]here are fundamentally two kinds of [corpоrate negligence] claims: (1) those relating to negligence in clinical care provided by the hospital directly to the patient, and (2) those relating to negligence in the administration or management of the hospital.” Estate of Waters v. Jarman,
A failure to inquire further into a matter listed on an application for renewal of surgical privileges has been deemed sufficient to raise a genuine issue of material fact as to whether a hospital was negligent in re-credentiafing
As an alternative basis for upholding the dismissal of plaintiffs’ complaint, the hospital defendants assert that the trial court erred by denying their motion to dismiss the сomplaint prior to the motion for summary judgment because plaintiffs failed to comply with the special pleading rules for medical malpractice cases contained in N.C.G.S. § 1A-1, Rule 9(j). We disagree.
When alleging medical malpractice, a complaint must
specifically assert[] that the medical care and all medical records pertaining to the alleged negligence that are available to the plaintiff after reasonable inquiry have been reviewed by a person who is reasonably expected to qualify as an expert witness under Rule 702 of the Rules of Evidеnce and who is willing to testily that the medical care did not comply with the applicable standard of care----
N.C. Gen. Stat. § 1A-1, Rule 9(j)(l) (2011) (emphasis added). Defendants contend that plaintiffs could not have reasonably expected their proffered expert witness, Dr. Dаly, to qualify as an expert because he does not meet the same or similar specialty test under North Carolina Rule of Evidence 702(b)(1) or the majority of professional time requirement under Rule 702(b)(2).
This Court held in Estate of Waters,
The trial court’s order granting summary judgment to the hospital defendants on the theory that Dr. Forgy was acting as such defendants’ agent is affirmed, as is its order denying defendants’ motion to dismiss pursuant to N.C.G.S. § 1A-1, Rule 9(j). The trial court’s order granting the hospital defendants’ motion for summary judgment on the theory that they were negligent in granting Dr. Forgy privileges is reversed and the case is remanded to the trial court for such proceedings as may be required.