*1 OF APPEALS THE COURT IN 448 v. BARKER SUMMEY (2002)] [154 BARKER, SUMMEY, FORSYTH COUNTY RONALD PATRICK JOSEPH COMPANY, SURETY; MICHAEL SHERIFF; INSURANCE HARTFORD jailer Forsyth SCHWEITZER, LINDA official capacities; County, chief SERVICES, INC., MADDUX, SIDES; d/b/a COR- MEDICAL CORRECTIONAL JOE SERVICES, MEDICAL SYSTEMS a/k/a CORRECTIONAL RECTIONAL MEDICAL Defendants No. COA02-13 2002) (Filed 3 December scheduling ex- Discovery— order —failure 1. pert —sanction for in an action not not abuse its discretion
The trial court did by denying bleed treating hemophilic a inmate’s nose promptly expert for an extension of time motion comply a plaintiff did not with consent witness where may have had that the defendants scheduling order. The fact depositions did not earlier witnesses from notice of the comply with the order. obligation relieve defendant bleeding hemophilic inmate’s 2. Prisons and Prisoners— summary judgment for promptness of treatment — nose — defendants judgment for granting not trial court did err hemophilic treating a promptly not in an action for defendants of evidence indi- defendant’s forecast nose bleed where inmate’s upon by his return from plaintiff was checked nurse cates that bleeding that he taken and was not the courthouse bleeding; plaintiff did not hospital immediately when he witnesses; bring did timely designate his any arguments opposi- or make countervailing evidence forth summary judgment. defendant’s motion for tion to dissenting. Judge Greene
Appeal by from order entered Forsyth County. Superior Court, Heard Carter, W. Judge Clarence Appeals 8 2002. Court of October Smith, L.L.P., by D. Ramsey, & Steven Parrish Smith plaintiff-appellant. Frye Moore, L.L.P., by Garrison & Lisa Smith Helms Mulliss Correctional Medical Duncan, W. Linda Sides and and Alan Services, defendant-appellees. IN THE OF APPEALS COURT v. BARKER SUMMEY
Womble, Carlyle Sandridge Rice, by & R. Gitter and Allan Read, IV, Insurance Oliver M. Ronald Hartford Company defendant-appellees. and Michael Schweitzer WYNN,Judge. summary judgment dismissing trial
Following grant court’s Summey’s plaintiff Joseph negli- Patrick medical and presents gence actions, plaintiff appeal issues on to this Court: two erroneously (1) expert trial court exclude his witness’ testi- Did the mony his designate as a sanction for failure to expert timely fashion; granting trial (2) in a and Did the court err ques- summary judgment in favor defendants? answer both of the We tions, therefore, no; and court’s judgment in favor of defendants. underlying appeal facts tend that on to this to show Forsyth County plaintiff, a Detention held
October Center hemophiliac, charges illegally removing a child across state day, plaintiff’s hemophilia lines. The next condition was evaluated Baptist Hospital North Carolina and he was released back day, appearance in following center. The after his first detention at the court, that his nose started to bleed criminal contends Apparently, was taken back to the detention center courthouse. he Services, employed defendant,
where a nurse Correctional Medical later, hours bleeding. attended to him but did not observe Several rapidly he p.m., at 11:00 nose around bleed transported Baptist Hospital was for treatment. Forsyth facts, plaintiff brought set of actions
From that Sheriff, Company (Surety County Baker, Ronald Hartford Insurance bond), alleg- Jailer for the Sheriff’s and Chief Michael Schweitzer apparently from ing negligence arising collective various acts of provided timely medi- alleged failure to ensure that he actions brought cal for his bleed. Plaintiff also treatment providers Medical including medical certain Correctional Systems employees alleging and its Linda Sides Joe Maddux appear negligence which to amount to claims collective acts negligence. voluntarily his initial in June 1999 dismissed action which, 1999; court entered re-filed it October after trial Discovery requiring plaintiff designate Scheduling Consent Order appeal days of the his witnesses within 30 conclusion on 9 March 2000.1 designated experts by Plaintiff should have his May 2001, September but did not do so until 4 2001. Defendants summary judgment moved for alleging there were no issues plaintiffs citing experts material fact and failure to Discovery accordance with Scheduling the Consent Order. Plaintiff moved for an extension of time to on 4 2001. The trial court denied granted motion and defendant’s motion for judgment.
Discovery Sanctions [1] “Ifa party fails to identify witness as ordered, the court shall, upon *3 party, impose motion moving appropriate the an sanc tion, may action, entry which include dismissal of the of default against defendant, the testimony or exclusion of the wit 1A-1, ness at trial.” N.C. Gen. Stat. 26(fl) (2001). Rule The choice of sanctions lies within the court’s discretion and will not be overturned appeal on showing absent a of abuse of discretion. See Routh v. Weaver, App. 426, 429, 67 793, N.C. 313 S.E.2d (1984). 795 case, plaintiff
In
experts by May
failed to
3
2001
according
he should have
Discovery
to the 9 March 2000 Consent
Scheduling
fact, plaintiff
In
experts
Order.
did not designate his
until
September
2001,
date,
almost four months after the ordered
and
more than
plaintiff
one month after defendants notified
non-
compliance. Apparently,
judge
any
chose to exclude
from
as a sanction for
non-
compliance
discovery
with
Surely,
order.2
evidence in the record
plaintiff
showing
comply
that
failed to
with the
order for
months, supports
several
the conclusion that the trial court did not
abuse
excluding
proffered testimony.
its discretion
Moreover,
may
the fact that the
defendants
have had notice of the
wit-
depositions,
ness from earlier
plaintiff
did not relieve the
of the obli-
gation
comply
subsequent
to
consent
Accordingly,
order.
we hold that the
has not shown that the trial court abused its
Company appealed
1. Defendants
Schweitzer and Hartford Insurance
a 14
denying
12(b)(6)
December 1999 order
their N.C.R. Civ. P.
In
motion to dismiss.
motion,
public
immunity
plaintiff’s negligence
defendants
claimed
official’s
barred
opinion
April
claims. This Court affirmed the trial court’s
2001. See
denial
an
filed 3
Summey Barker,
App. 688,
v.
(2001).
142 N.C.
Review [2] Under N.C. Gen. Stat. § 1A-1, Rule 56(c) (2001), judg depositions, pleadings, forthwith if the an ment “shall be rendered file, with af interrogatories, together and admissions on swers fidavits, as to material any, if show that there is no issue any party judgment as a matter law.” fact and that is entitled to are moving party gen that there no showing bears the burden of Inc., Industries, fact. uine issues of material See Moore Coachmen “The 389, 394, evidence is party.” nonmoving light viewed most favorable to Id. be (I) negligence Plaintiff three claims defendants: brought courthouse; plaintiffs when the nose bled at the calling for not doctor and, something done sooner before having punishment; rapidly night; (II) that cruel and unusual began bleeding fiduciary statutory duties. further (III) breach appear negligence which alleged general acts to constitute part providers. On review of the evidence in the of the medical plaintiff, the trial court’s light most favorable to in favor defendants. First, forecast of evidence indicates defendants’ *4 infirmary upon his from the courthouse nurse return checked the per- time nor his clothes or bleeding his nose was not at that did and, night when his any them; have that son blood hospital immediately. plaintiff to bleeding rapidly, was taken Second, malpractice actions, “plaintiff in must demon- medical testimony qualified expert by the of a that the treatment admin- strate accepted negligent was in violation istered the defendant community in that defendant’s treat- of medical care standard injury.” Inglefield, proximately ment caused Huffman omitted). 178, 182, 169, (2001) (citations Since 557 S.E.2d timely expert witnesses, plaintiff is plaintiff did not prove negligent behavior was a violation of unable to the defendants’ plaintiff bring did accepted Further, of care. standard medical any opposi- in countervailing arguments evidence or make forth summary judgment. for tion to defendants’ motion plaintiff’s sum, of In the trial court’s exclusion timely comply failing with the as a sanction for witness discovery consent order. We further affirm the trial court’s of summary judgment in favor of defendants.
Affirmed.
Judge McGEE concurs.
Judge GREENE dissents.
GREENE, Judge, dissenting part. As (I) the trial erred in failing court to consider lesser sanctions plaintiff’s discovery for major- misconduct I (II) disagree ity solely malpractice that this action was a medical action, I dissent part.
I case, In plaintiff’s this the trial court’s exclusion of had the same effect as a dismissal malpractice medical imposition action. While the for sanctions misconduct is within the court, discretion the trial this Court has held that before trial court selects severe a as dismissal, sanction it must first appropriateness determine the Wilder, of lesser sanctions. Wilder v. 577, App. 574, 146 N.C. words, In other findings trial court must make and conclusions indicating it has con- less sidered drastic sanctions. Id. Less drastic sanctions in case staying could have proceedings included further until com- plied with order, the trial court’s finding contempt court, requiring plaintiff pay or expenses, including reasonable attorney’s fees, comply. caused 1A-1, failure to See N.C.G.S. § 37(b)(2) (available Rule (2001) obey sanctions failure to Rule 26(f) discovery order). conference case,
In this court findings respect trial made no with appropriateness such, of lesser sanctions. As exclu- court’s sion of and its resulting grant respect with action must be reversed and remanded consideration lesser sanctions.
II Even if justi- the trial court’s exclusion of was fied, this summary Court still would need to judg- consider whether respect ment with to defendants Sheriff Ronald Chief Jailer Schweitzer, Company Michael and the appro- Hartford Insurance priate as suit these defendants was not a medical malpractice action. malpractice
A medical action is defined as “a civil action for damages personal injury death arising furnishing or out of the professional or failure performance to furnish services of med- ical, dental, by provider.” or other health care a health care N.C.G.S. 90-21.11 § None of the aforementioned defendants can be con- provider. sidered a health care See id. (defining a health care provider). Furthermore, plaintiff allege jail personnel, does not opposed personnel to the medical available at the correctional facil- ity, professional failed to furnish they medical services which capable were rendering. Instead, plaintiff jail argues personnel fiduciary failed to fulfil statutory duties under N.C. Gen. seq. Stat. § 160A-59et by the North Carolina Constitution timely bringing his medical needs to the a designated attention of provider. health care
As jail action itself does not a constitute malpractice action, consequence that, it is of no as stated majority, upon plaintiffs experts by exclusion of the trial court, plaintiff evidentiary was not able required to meet the burden in a medical Inglefield, action. See Huffman App. 178, 182, 172 (2001) (in medical mal- practice actions, must “demonstrate qualified expert that the treatment administered the defend- negligent accepted ant was in violation of the standard of medical community care in the proxi- and that defendant’s treatment [the] mately caused the injury”). Accordingly, summary judgment sheriff, favor of jailer, jail’s the chief and the insurer on this basis alone would be error. court, however,
Where the trial grants a motion for delineating doing so, without its reasons for as the trial case, court did in this Court must determine whether there is upholding basis for agree court’s order. Because I majority that respect there are no issues of material fact with plaintiff’s negligence sheriff, jailer, claim against the the chief jail’s insurer, I would therefore affirm judgment with respect to these defendants.