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No. COA97-1043 FOURTEENTH DISTRICT
NORTH CAROLINA COURT OF APPEALS
GEORGE T. WRENN,

                       Plaintiff,

            vs.

MARIA PARHAM HOSPITAL, INC.

                       Defendant.
)
)
)
)
)
)
)
)
)
)
From Durham County
95 CVS 2437 
_______________________________________) 
 

PLAINTIFF-APPELLANT'S BRIEF

INDEX
TABLE OF CASES AND AUTHORITIES          iv

QUESTIONS PRESENTED          1

STATEMENT OF THE CASE          2

STATEMENT OF FACTS          4

ARGUMENT          6

 

  1. SUMMARY JUDGMENT WAS NOT PROPER BECAUSE THERE IS SUBSTANTIAL EVIDENCE THAT PLAINTIFF WAS INJURED BY THE NEGLIGENCE OF DR. BYRD AND THAT DR. BYRD WAS THE AGENT OF DEFENDANT HOSPITAL.          7
    1. Introduction          7
    2. Plaintiff Produced Substantial Evidence That He Was Discharged from the Hospital in an Unstable Condition in Violation of the Standards of Practice.         7
    3. Plaintiff Produced Substantial Evidence That His Injuries and Damages Were Caused by Departures from the Standard of Care.          8
    4. Dr. Byrd Was the Agent of the Hospital at the Time He Provided Treatment for Tom Wrenn on September 4, 1989.         8

  2. SUMMARY JUDGMENT WAS NOT PROPER BECAUSE THERE IS SUBSTANTIAL EVIDENCE THAT (A) DEFENDANT HOSPITAL HAD A NON-DELEGABLE DUTY TO PROVIDE PLAINTIFF WITH MEDICAL CARE, (B) THE MEDICAL CARE HE RECEIVED WAS NEGLIGENT, AND (C) THE NEGLIGENCE CAUSED HIM INJURY.         18
    1. The Contract Between Coastal and the Hospital Provides That the Hospital's Duty to Render Medical Care in its Emergency Department Is Non-delegable.          19
    2. The Provision of Emergency Services Is So Important to the Community That the Hospital's Duty to Provide Care Should Be Non-delegable.          22

  3. SUMMARY JUDGMENT WAS NOT PROPER BECAUSE THERE IS SUBSTANTIAL EVIDENCE THAT NEGLIGENCE BY DEFENDANT'S NURSES WAS A CAUSE OF PLAINTIFF'S INJURIES. 25
    1. Plaintiff's Claim for Nursing Negligence Is Not Barred by the Statute of Limitations. 26
    2. Plaintiff Produced Substantial Evidence That He Was Injured by Nursing Negligence. 30

  4. SUMMARY JUDGMENT WAS NOT PROPER BECAUSE THERE IS SUBSTANTIAL EVIDENCE THAT NEGLIGENCE BY DEFENDANT HOSPITAL IN FAILING TO FOLLOW AN ADEQUATE QUALITY ASSURANCE PROGRAM WAS A CAUSE OF PLAINTIFF'S INJURIES. 30

  5. SUMMARY JUDGMENT WAS NOT PROPER BECAUSE THERE IS SUBSTANTIAL EVIDENCE THAT NEGLIGENCE BY THE DEFENDANT HOSPITAL IN CREDENTIALING DR. BYRD WAS A CAUSE OF PLAINTIFF'S INJURIES. 31

  6. THERE IS SUBSTANTIAL EVIDENCE ENTITLING PLAINTIFF TO PUNITIVE DAMAGES. 33

    CONCLUSION 34

    CERTIFICATE OF SERVICE 35

    APPENDIX           36

 TABLE OF CASES AND AUTHORITIES

Cases

Azzolino v. Dingfelder
71 N.C. App. 289, 321 S.E.2d 567 (1984) 10

Baldwin v. GTE South, Inc.
335 N.C. 544, 439 S.E.2d 108 (1994) 22

Blanton v. Moses H. Cone Memorial Hospital. Inc.
     319 N.C. 372, 354 S.E.2d 455 (1987) 22, 30, 31, 32

Bowlin v. Duke University 
     119 N.C. App. 178, 457 S.E.2d 757 (1995) 28, 29

Brown v. Bottoms Truck Lines
     277 N.C. 299, 42 S.E.2d 71 (1947) 23

Deitz v. Jackson
     57 N.C. App. 275, 291 S.E.2d 282 (1982) 23

Estrada v. Jaques 
     70 N.C. App. 627, 321 S.E.2d 240 (1984) 28

Exum v. Boyles 
     272 N.C. 567, 158 S.E.2d 845(1968) 27

Ford v. Willys?Overland 
     197 N.C. 147, 147 S.E. 822 (1929) 9

Griffin v. Matthews 
     36 Ohio App. 3d 228, 522 N.E.2d 1100 (Ohio App. 1987) 25

Hayes v. Elon College 
     224 N.C. 11, 29 S.E.2d 137 (1944) 8, 10, 11, 12, 16

Hinson v. Dawson 
     244 N.C. 23, 92 S.E.2d 393 (1956) 33

Holley v. Burroughs Wellcome Co.
     74 N.C. App. 736, 330 S.E.2d 228 (1985), aff'd, 318 N.C. 352, 348 S.E.2d 772 (1986) 9

In re Watson 
     70 N.C. App. 120, 318 S.E.2d 544 (1984), disc. review denied, 313 N.C. 330, 327 S.E.2d 900 (1985) 27

Jackson v. Power 
     743 P.2d 1376 (Alaska 1987) 24

Martell v. St. Charles Hosp. 
     523 N.Y.S.2d 342 (Sup. 1987) 25

Medley v. N.C. Department of Correction 
     330 N.C. 837, 412 S.E.2d 654 (1992) 22

Pace v. Pace 
     244 N.C. 698, 94 S.E.2d 819 (1956) 23

Richardson v. McCracken Enterprises, Inc. 
     126 N.C. App. 506, 485 S.E.2d 844 (1997), disc. rev. denied 347 N.C. 269, 493 S.E.2d 745 (1997) 29

Rogers v. T.J.X Companies, Inc. 
     329 N.C. 226, 404 S.E.2d 664 (1991) 33

Rucker v. High Point Memorial Hospital 
     20 N.C. App. 650, 202 S.E.2d 610 (1974), aff'd, 285 N.C. 519, 206 S.E.2d 196 (1974) 8, 10

Sampson v. Baptist Memorial Hosp.  
     940 S.W.2d 128 (Tx. App. - San Antonio 1996) 25

Shumaker v. U.S. 
     714 F. Supp. 154 (M.D.N.C. 1988) 22

Stanford v. Owens 
     76 N.C. App. 284, 332 S.E.2d 730 (1985), review denied, 314 N.C. 670, 336 S.E.2d 402 (1985) 27

Van Leuven v. Motor Lines 
     261 N.C. 539, 135 S.E.2d 640 (1964) 33

Willoughby v. Wilkins 
     65 N.C. App. 626, 310 S.E.2d 90 (1983) 8, 9, 10

Woodson v. Rowland 
     329 N.C. 330, 407 S.E.2d 222 (1991) 23

Wrenn v. Byrd 
     120 N.C. App. 761, 464 S.E.2d 89 (1995), cert. den. 342 N.C. 666, 467 S.E.2d 738 (1996) 3

Wright v. Wright 
     229 N.C. 503, 50 S.E.2d 540 (1948) 22, 23

You v. Roe 
     97 N.C. App. 1, 387 S.E.2d 188 (1990), cert. denied, 326 N.C. 366 (1990) 28

Youngblood v. North State Ford Truck Sales
     321 N.C. 380, 364 S.E.2d 433 (1988) 9, 10, 12, 13, 15

Statutes and Other Authorities

Statutes

N.C.G.S. 131E-75 23

Federal Regulations
42 C.F.R. Section 482.12 5, 19, 21
42 C.F.R. Section 482.55 5, 21, 34

Notice of Proposed Rulemaking
Federal Register, Vol. 51, No. 116, Tuesday, June 17, 1986, Rules and Regulations, p. 22015 20

North Carolina Administrative Code
N.C.A.C., T. 10. 03C.0406 24
N.C.A.C., T. 10. 03C.1001 23
N.C.A.C., T. 10. 03C.1002 24, 32

JCAHO Standards
JCAHO ER.2.3 5, 21, 34
JCAHO ER.9 31
JCAHO ER.9.1.1 31

Other Authorities
Black's Law Dictionary, 6th Ed. 247 (1990) 27
Prosser & Keeton on the Law of Torts 71 at 512 (5th ed. 1984) 23
Restatement (Second) of Torts 424, at 411 (1963) 21

No. COA97-1043 FOURTEENTH DISTRICT
NORTH CAROLINA COURT OF APPEALS
GEORGE T. WRENN,

                       Plaintiff,

            vs.

MARIA PARHAM HOSPITAL, INC.

                       Defendant.
)
)
)
)
)
)
)
)
)
From Durham County
95 CVS 2437 
______________________________________)

QUESTIONS PRESENTED

  1. DID THE TRIAL COURT COMMIT REVERSIBLE ERROR IN GRANTING THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT BECAUSE THERE WERE GENUINE ISSUES OF MATERIAL FACT AND DEFENDANT WAS NOT ENTITLED TO JUDGMENT AS A MATTER OF LAW?
  2. DID THE TRIAL COURT COMMIT REVERSIBLE ERROR IN GRANTING THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ON THE ISSUE OF WHETHER DR. BYRD WAS THE AGENT OF DEFENDANT AT THE TIME HE TREATED PLAINTIFF BECAUSE THERE WERE GENUINE ISSUES OF MATERIAL FACT AND DEFENDANT WAS NOT ENTITLED TO JUDGMENT AS A MATTER OF LAW?
  3. DID THE TRIAL COURT COMMIT REVERSIBLE ERROR IN GRANTING THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ON THE ISSUE OF WHETHER DEFENDANT'S NURSES NEGLIGENTLY CAUSED THE PLAINTIFF'S INJURIES BECAUSE THERE WERE GENUINE ISSUES OF MATERIAL FACT AND DEFENDANT WAS NOT ENTITLED TO JUDGMENT AS A MATTER OF LAW?
  4. DID THE TRIAL COURT COMMIT REVERSIBLE ERROR IN GRANTING THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ON THE ISSUE OF WHETHER THE DEFENDANT CAUSED THE PLAINTIFF'S INJURIES BY FAILING TO DEVELOP AND FOLLOW AN ADEQUATE QUALITY ASSURANCE PROGRAM FOR EMERGENCY SERVICES BECAUSE THERE WERE GENUINE ISSUES OF MATERIAL FACT AND DEFENDANT WAS NOT ENTITLED TO JUDGMENT AS A MATTER OF LAW?
  5. DID THE TRIAL COURT COMMIT REVERSIBLE ERROR IN GRANTING THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ON THE ISSUE OF WHETHER DEFENDANT WAS NEGLIGENT IN CREDENTIALING DR. BYRD BECAUSE THERE WERE GENUINE ISSUES OF MATERIAL FACT AND DEFENDANT WAS NOT ENTITLED TO JUDGMENT AS A MATTER OF LAW?
  6. DID THE TRIAL COURT COMMIT REVERSIBLE ERROR IN GRANTING THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ON THE ISSUE OF WHETHER DEFENDANT BREACHED A NON-DELEGABLE DUTY TO PLAINTIFF BECAUSE DEFENDANT OWED PLAINTIFF A NON-DELEGABLE DUTY TO PROVIDE MEDICAL TREATMENT TO HIM IN DEFENDANT'S EMERGENCY DEPARTMENT, AND THERE WERE GENUINE ISSUES OF MATERIAL FACT CONCERNING DEFENDANT'S BREACH OF SUCH DUTY.
  7. DID THE TRIAL COURT COMMIT REVERSIBLE ERROR IN GRANTING THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ON THE ISSUE OF PUNITIVE DAMAGES BECAUSE THERE WERE GENUINE ISSUES OF MATERIAL FACT AND DEFENDANT WAS NOT ENTITLED TO JUDGMENT AS A MATTER OF LAW?

STATEMENT OF THE CASE

          On January 8, 1992 plaintiffs George T. Wrenn and Carolyn M. Wrenn filed an action against Coastal Emergency Services, Inc. ("CES, Inc."), Maria Parham Hospital, Inc. ("Hospital") and Jesse Randall Byrd, M.D. The action alleged claims of medical negligence against the defendant Byrd, and nursing negligence against the defendant Hospital which proximately caused plaintiff to suffer amputations of most of both of his feet with resulting disability, the loss of his business and other damages. (R p. 536) The action further alleged agency and corporate negligence claims against the corporate defendants. In addition, the action alleged that Coastal was the agent for the Hospital. Carolyn Wrenn, wife of George T. Wrenn, alleged a claim of negligent infliction of emotional distress ("NIED"). 
          On October 29, 1993, after hearing the same issues that are raised by this appeal, Judge J. Milton Read, Jr. denied the hospital's motion for summary judgment. (R p. 622) An amended Complaint was filed on April 5, 1994. (R p. 623) 
          On June 9, 1994 the plaintiffs filed a notice of voluntary dismissal without prejudice of their claims against the hospital.(R p. 650) On October 10, 1994, when the case was called for trial, the trial court entered a summary judgment against claims of Carolyn Wrenn against the defendant Byrd for NIED. On October 11, 1994, the plaintiff, George T. Wrenn, filed a notice of voluntary dismissal without prejudice of his claims against the defendant Byrd pending a determination by the Court of Appeals of Carolyn Wrenn's appeal. Subsequently, the Court of Appeals unanimously reversed the trial Court's summary judgment order and the Supreme Court denied the defendant's Petition for Discretionary Review. Wrenn v. Byrd, 120 N.C. App. 761, 464 S.E.2d 89 (1995), cert. den. 342 N.C. 666, 467 S.E.2d 738 (1996). 
          On June 6, 1995, the plaintiff filed this action. Defendant hospital was duly served with process. (R p. 16) The hospital served its answer to the Complaint on July 11, 1995. (R p. 23) During the spring of 1997 the Coastal defendants informed plaintiffs that the aggregate limits of liability insurance applicable to these claims was exhausted and that the Coastal defendants were having extreme financial difficulties. (R pp. 409,410) For this reason plaintiffs were forced to settle with the Coastal defendants and defendant Byrd, on modest terms. (R pp. 411-418) The hospital served a motion for summary judgment on May 1, 1997. (R p. 420) After hearing, the Superior Court for Durham County, Judge Orlando F. Hudson, presiding, entered an order allowing defendant's motion for summary judgment on May 28, 1997. (R p. 530) Plaintiff George T. Wrenn served Notice of Appeal from the order on June 13, 1997. (R p. 652) The Record on Appeal was docketed on September 2, 1997. 

STATEMENT OF FACTS 

          Carolyn Wrenn ("Carolyn") took her husband George T. Wrenn ("Tom") to the emergency department of Maria Parham Hospital in Henderson, North Carolina at approximately 3:10 a.m. on September 4, 1989. Tom's presenting symptoms included the sudden onset of a fever of more than 103E, chills, nausea, vomiting, frontal headaches and aches in the muscles of his lower extremities; he had a history of a recent tick bite and splenectomy; and he appeared acutely ill and was vomiting bile-stained material.(R p.155) 
          Tom was seen in the emergency department by defendant Jesse Randall Byrd, M.D.("Byrd"). Dr. Byrd's residency training was in Internal Medicine. He had sat for and failed the specialty board examination for certification in Internal Medicine in 1987,1988, 1989 and 1990. (R p. 384) He also sat for and failed the boards for Emergency Medicine certification in 1990. (R p. 392) 
          The contract between Coastal and the Hospital required that the emergency care be provided in accordance with "...all currently accepted and approved methods and practices of the professional speciality of emergency medicine."(emphasis added) (R p. 115; App. p. 6) Federal regulations expressly incorporated into the contract prohibited the hospital from delegating its responsibility for providing patient care in its emergency department. 42 C.F.R. 482.12(e) (R p. 490; App. p. 39) Furthermore, federal regulations and a JCAHO standard required emergency care to be provided by physicians in the hospital's emergency department under the direction and supervision of a qualified member of the medical staff. 42 C.F.R. 482.55(a)(1) and (b)(1) (R p. 494; App. p. 43); JCAHO Standard ER.2.3 (R p. 494; App. p. 43) 
          On September 4, 1989, when Tom came for treatment, the hospital did not have a medical director of its emergency department. (R pp. 48, 561) Dr. Byrd, the only physician on duty, had credentials to provide patient care in the hospital's emergency department restricted to category "1," which required him to request consultation "...in all cases in which doubt exists as to the diagnosis, where expected improvement is not soon apparent and when specialized therapeutic or diagnostic techniques are indicated." (R p. 222) 
          Prior to Tom's discharge and during an x-ray procedure, the x-ray technician noted in the records in red ink, "patient passed out on last upright film." (R p. 158; Ranes dep. p. 28) 
          Dr. Byrd's impression was that Tom had food poisoning, although Carolyn had eaten the same foods with her husband at dinner and she was not sick. (Carolyn Wrenn dep. p. 4) Carolyn signed the discharge instructions because Tom was incoherent. (Carolyn Wrenn dep. p. 18) At his deposition Tom had no recollection of having been in the emergency department. (Tom Wrenn dep. p. 4) When last recorded, all of his vital signs were abnormal. 
          At approximately 10:02 p.m. on September 4, 1989 Tom was returned by his wife to the hospital in septic shock with a rash. He was flown to Duke University Medical Center, where he was received in the emergency department at approximately 2:40 a.m. on Tuesday, September 5, 1989, diagnosed as being in septic shock, with either Rocky Mountain Spotted Fever or meningococcus. 
          He was discharged home on September 25, 1989; subsequently, he was readmitted to surgically treat ischemia. The distal half of each foot was removed, as well as one finger. He underwent multiple procedures for skin grafting and to treat skin breakdowns. He has been totally disabled ever since. He has difficulty balancing, he can walk only short distances, and the skin on his feet constantly breaks down, making walking painful and sometimes impossible. 

ARGUMENT

 I. SUMMARY JUDGMENT WAS NOT PROPER BECAUSE THERE IS SUBSTANTIAL EVIDENCE THAT PLAINTIFF WAS INJURED BY THE NEGLIGENCE OF DR. BYRD AND THAT DR. BYRD WAS THE AGENT OF DEFENDANT HOSPITAL.

ASSIGNMENT OF ERROR NO. 1 
ASSIGNMENT OF ERROR NO. 2 (R p. 656) 

A. Introduction
          Plaintiff presented substantial evidence that he suffered personal injuries and damages as a proximate result of the negligence of Dr. Byrd. (i.e., affidavit of Neal Little, M.D., R p. 617; App. p. 17) In addition, plaintiff submitted substantial evidence that at the time Dr. Byrd rendered treatment to the plaintiff, Dr. Byrd was acting as the agent of the hospital. 

B. Plaintiff Produced Substantial Evidence That He Was Discharged from the Hospital in an Unstable Condition in Violation of the Standards of Practice.
          Plaintiff presented affidavits and depositions of expert witnesses which showed that it was a fundamental departure from the standard of care for Dr. Byrd to send plaintiff home in an unstable condition, and that Dr. Byrd's conduct caused the plaintiff to lose most of both of his feet and his livelihood. See, e.g., Affidavit of Bitterman, 11 (R p. 465; App. p. 21); Affidavit of White, 9 (R p. 436; App. p. 26); Affidavit of Little, 7 & 8.(R p. 617; App. p. 17) 

C. Plaintiff Produced Substantial Evidence That His Injuries and Damages Were Caused by Departures from the Standard of Care. 
          The physicians who provided expert testimony for the plaintiff testified that it is more likely than not that the departures from the standards of practice were a cause of the plaintiff's amputations and other complications. See, e.g., Affidavit of Little, 9 (R p. 617; App. p. 17); Sparling (Chair Department of Medicine, University of North Carolina) dep., pp. 47-48, 64; Cook dep., pp. 46?47, 61-62. 

D. Dr. Byrd Was the Agent of the Hospital at the Time He Provided Treatment for Tom Wrenn on September 4, 1989. 
          Plaintiff submits that Dr. Byrd was acting as the agent of Maria Parham
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1Although the defendant hospital argued erroneously at the summary judgment hearing that plaintiff was barred by the statute of limitations from pursuing nursing and corporate negligence claims, defendant conceded that plaintiff sufficiently pleaded the hospital's respondeat superior liability for defendant Byrd's negligence in his Complaint and Amended Complaint in file No. 92 CVS 93, and also in his Complaint in file No. 95 CVS 2437.

Hospital when he discharged plaintiff. Willoughby v. Wilkins, 65 N.C. App. 626, 310 S.E.2d 90 (1983) (finding jury question on whether emergency room doctor was agent of Wayne Memorial Hospital); Rucker v. High Point Memorial Hospital, 20 N.C. App. 650, 202 S.E.2d 610 (1974), aff'd, 285 N.C. 519, 206 S.E.2d 196 (1974)(contract established an employment relationship between hospital and doctor as a matter of law). 
          Where the party for whom the work is being done retains the right to interfere, control, or direct the manner in which the details of the work are to be executed, the relationship of employer and employee is created. Willoughby v. Wilkins, 65 N.C. App. 626, 633?634, 310 S.E.2d 90, 95 (1983); Hayes v. Elon College, 224 N.C. 11, 29 S.E.2d 137 (1944). "If the employer has the right of control, it is immaterial whether he actually exercises it." Youngblood, 321 N.C. 380, 387, 364 S.E.2d 433, 439 (1988) (citations omitted). 
          The fact that the contract states that a person is an independent contractor, as in this case, is not determinative. Ford v. Willys?Overland, 197 N.C. 147, 149, 147 S.E. 822, 823 (1929). Such a contractual provision, as well as testimony to like effect, is evidence to be considered with all of the other evidence which bears on the issue of agency. Willoughby v. Wilkins, 65 N.C. App. 626, 635, 310 S.E.2d 90, 95?96 (1983).

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2Likewise, despite defendant's argument to the contrary at the summary judgment hearing, it is not determinative that a sign in the hospital's emergency department and a self-serving statement in its consent to treatment form stated that the emergency physicians are independent contractors. 

3The affidavit of Dr. Byrd, asserting his independence, is a special category of evidence. The trial court should not have given it weight in considering the summary judgment motion because the affidavit is inherently suspect. Holley v. Burroughs Wellcome Co., 74 N.C. App. 736, 330 S.E.2d 228 (1985), aff'd, 318 N.C. 352, 348 S.E.2d 772 (1986). Dr. Byrd's interest is to avoid the professional stigma of a finding of wrongdoing and possible claims from the hospital for indemnity. Indeed, Dr. Byrd in his affidavit of May 1, 1997, stated that "in the exercise of [his] clinical judgment, Mr. Wrenn'


          The fact that Dr. Byrd provided medical services at Maria Parham as a result of his contract with Coastal and Coastal's contract with Maria Parham in no way precludes a finding that Dr. Byrd was the hospital's agent. In Azzolino v. Dingfelder, 71 N.C. App. 289, 321 S.E.2d 567 (1984), the plaintiff sued the Orange Chatham Community Clinic based on the alleged negligence of Dr. Dingfelder. Dr. Dingfelder was a regular salaried employee of the University of North Carolina ("UNC") which had a contract to provide certain services at the Clinic. Dr. Dingfelder's alleged negligence involved services he performed while fulfilling UNC's contract with the Clinic. The Court of Appeals found that there was sufficient evidence that Dr. Dingfelder was the agent of the Clinic based on the general supervisory powers of its medical director. Azzolino, supra, 71 N.C. App. at 318-319. 
          In considering the various agency factors, the Supreme Court cautions, that "[n]o particular one of these factors is decisive in itself. Each is but a sign which must he considered with all other indicia and circumstances to determine the true status of the parties." Youngblood, 321 N.C. at 385, 364 S.E.2d at 438 (citations omitted); Elon College, 224 N.C. at 16, 29 S.E.2d at 140. 
          A. The Rucker and Willoughby Factors
          The Court of Appeals considered nine factors in Rucker, 20 N.C. App. at 660, 202 S.E.2d at 617, in finding agency as a matter of law, and six factors in Willoughby, 65 N.C. App. at 634-635, 310 S.E.2d at 96, in finding enough

_________________________________________________________________________________
condition had improved enough by 6:55 a.m. that I felt he was able to be discharged." (R p. 425, 11) However, in his deposition given in November, 1992, he testified that he had no independent recollection of having seen Mr. Wrenn, nor did his review of the records refresh his recollection. (Byrd Deposition p. 10) Thus, not only is the affidavit inherently suspect because of Dr. Byrd's interest, but the affidavit is in direct conflict with his deposition testimony that he did not remember seeing Mr. Wrenn on September 4, 1989.

evidence to submit the agency issue to the jury. Four of the nine factors were present in both cases. Thus, a total of eleven factors providing evidence of agency are identified in those two cases. The four common factors are: 
1. Requirement to see all patients coming to the emergency room. Dr. Byrd was required to see all patients seeking emergency services. (Coastal/Hospital Contract 2.d; R p. 112; App. p. 3). This requirement is indicative of agency and was present in Rucker and Willoughby
2. No private practice (independent calling). The no private practice factor in Willoughby and Rucker was significant because it was particular proof in those cases tending to show that the doctor was not "engaged in an independent business, calling or occupation," a hallmark of an independent contractor. Hayes v. Elon College, 224 N.C. 11, 16, 29 S.E.2d 137, 140 (1944). In this case, Dr. Byrd worked at the hospital full-time, thus providing strong evidence that he was not pursuing an independent business calling or occupation. (Byrd dep. pp. 4?9) 
3. There was no place where Dr. Byrd hung out a shingle or had an office in which to see patients. He did not bill patients for his services. He never hired assistants, met a payroll, purchased supplies, or otherwise independently practiced his profession. 
4. Doctor required to serve the best interests of the hospital. The contracts in Rucker and Willoughby stated that the doctor was to act in the best interests of the hospital. The contracts here required the same allegiance to the hospital by Dr. Byrd. For example, the Coastal contract with Dr. Byrd specifically recognized that his relationship with Maria Parham is "a position of trust." ( 10(a)(5); R p. 604; App. p. 15) A doctor having a position of trust with a hospital has the corresponding fiduciary duty to serve its best interests, and a jury could so find. 
5. Leave provisions. The contracts in Rucker and Willoughby provide for vacation, educational, and sick leave for the emergency physicians. Maria Parham Hospital did not provide Dr. Byrd such leave. 
6. The five Rucker factors not mentioned in Willoughby are: 
7. Payment by unit of time. The doctor in Rucker worked at a guaranteed annual salary. Here, Dr. Byrd was paid a set hourly rate for the hours he worked. (Coastal/Byrd Contract, 3; R p. 604; App. p. 15) The hospital paid Coastal a set hourly rate for the hours Dr. Byrd worked. (Coastal/hospital Contract, 16 (a); R p. 118; App. p. 9) Payment based on hours worked is as indicative of agency as is an annual salary. "Payment of a fixed contract price or lump sum ordinarily indicates that the worker is an independent contractor, Hayes v. Elon College, 224 N.C. 11, 29 S.E.2d 137 (1944), while payment by a unit of time, such as an hour, day, or week, is strong evidence that he is an employee." Youngblood, 321 N.C. at 384, 364 S.E.2d at 437-438 (citations omitted). (Emphasis added.) 
8. Required hours of work. The High Point emergency room doctors in Rucker worked twelve hour shifts. Dr. Byrd and the other emergency room doctors at Maria Parham also worked twelve hour shifts at established times. (See September 1989 Work Schedule; R p. 610) Requiring a person to work at particular times constitutes direct evidence of control. Youngblood, 321 N.C. at 385, 364 S.E.2d at 438 (citations omitted).
9. The hospital collects the fees. The High Point hospital collected all fees for services provided by the emergency room doctors in the Rucker case. Maria Parham not only billed and collected all fees for services performed by Dr. Byrd; it set the fees for his services. (Coastal/Hospital Contract 15 a.; R p. 118; App. p. 9) Moreover, the hospital billed patients for Dr. Byrd's services in its own name. (R pp. 280, 281) 
10. Total collections for emergency physicians' services in excess of guaranteed payments to physicians divided among them. The total collections for services performed by the emergency room doctors in Rucker which exceeded their guaranteed salaries were divided among them. No such arrangement existed for Dr. Byrd. Certainly, the absence of something similar for Dr. Byrd at Maria Parham, who was being paid by the hour, favors a finding of agency as opposed to contractorship. 
11. Referral to a specialist determined by hospital. In Rucker, when services of a specialist were required, the High Point emergency room doctor was to call a specialist on backup call. Dr. Byrd likewise was required to refer patients to specialists according to the hospital's call schedule. (Coastal/Hospital Contract 20d.; R pp. 120, 121; App. pp. 11, 12) (Medical Staff Bylaws, R pp. 329, 330) 
12. Therefore, there is evidence in this case of eight of the nine factors identified in Rucker which established agency as a matter of law in that case. Additionally, both of the Willoughby factors not common to both cases are also present in this case: 
13. The doctor does not set his own schedule. Dr. Cain could not independently set his own schedule. Neither did Dr. Byrd. "Physician acknowledges that he is required to provide services on and during the hours so assigned by the Corporation." (Coastal/Byrd Contract 2(c); R p. 604; App. p. 15) 
14. Medical records filed with hospital. Dr. Cain was required to keep adequate medical records to be filed with the hospital. Dr. Byrd's record keeping obligations were even more circumscribed. "Hospital shall provide and maintain an adequate system of medical records for the Emergency Department, at Hospital's expense." (Coastal/Hospital Contract 20 c.; R p. 120; App. p. 11) The records for Dr. Byrd's services were the hospital's, not his; he generated no records of his own. 
15. B. The Youngblood Factors
16. The Court in Youngblood identified four basic factors which led it to conclude, as a matter of law, that plaintiff was the agent of a company. The Court found that "North State retained the right to control the details of plaintiff's work by [1] paying him on a time basis, [2] providing him all materials and assistance which he needed, [3] setting his hours of work, and [4] retaining the right to discharge him at any time." Youngblood, 321 N.C. at 387, 364 S.E.2d at 437?438. 
17. 1. Paying on a time basis. The plaintiff Youngblood was paid $250 per day. Here, as discussed in Rucker/Willoughby factor 5 above, Dr. Byrd was paid by the hour, which is "strong evidence that he is an employee." Youngblood, 321 N.C. at 384, 364 S.E.2d at 438. 
18. 2. Providing all materials and assistance which he needed. The plaintiff Youngblood was provided the necessary tools, equipment, and supplies, and whatever workers he needed to assist him. By contract, the hospital here provided for Dr. Byrd's use the "emergency facilities," the "on call room," the "medical records," "support services," and "hospital personnel." (Coastal/Hospital Contract 20; R p. 120; App. p. 11)
19. 3. Setting his hours of work. The plaintiff in Youngblood was required to work during the regular work hours of the company. Dr. Byrd was required to work a twelve hour shift under a set schedule. He also was required to "remain on Hospital's premises during [his] tour of duty at Hospital." (Coastal/Hospital Contract 2b.; R p. 111; App. p. 2) See Rucker/Willoughby factors 6 and 10 above. 
20. 4. Retaining the right to discharge worker at any time. In the Youngblood case, the Court found that the company could fire Mr. Youngblood at any time without cause, which it said was an indicium of employment. Youngblood, 321 N.C. at 385, 364 S.E.2d at 438. The hospital could cause Dr. Byrd to be discharged if the hospital deemed his performance "...to be unsatisfactory for any reason..." (Coastal/Hospital Contract 4; R p. 115; App. p. 6) Dr. Bryd's contract with Coastal took into account the hospital's power over Dr. Byrd by providing that Coastal could terminate its contract with Dr. Byrd immediately "if it is notified by a responsible official of a medical institution at which the Physician is providing medical service pursuant to this Agreement that the transfer of the Physician is desired." (Id. 13 (b); R p. 605; App. p. 16) Moreover, the hospital had the right to terminate Dr. Byrd's privileges without recourse and without according him the same rights to due process as other physicians with privileges. (Coastal/Byrd Contract 12; R p. 605; App. p. 16) 
21. C. The Elon College factors
22. In the Elon College case, the Court found that electricians regularly employed by Duke Power Company who agreed to string a power line for Elon College for a fixed price on their own time were independent contractors. The Court set forth eight general factors tending to show that a person is an independent contractor, none of which is to be controlling. Elon College, 224 N.C. at 16, 29 S.E.2d at 140. 
23. 1. Is engaged in an independent business, calling, or occupation. Plaintiff has already shown that Dr. Byrd was not engaged in an independent business, calling, or occupation. See Rucker/Willoughby Factor 2, supra. 
24. 2. Is to have the independent use of his special skill, knowledge, or training in the execution of the work. Dr. Byrd's independence in this respect was significantly circumscribed. His privileges were the most restricted available, and required consultation in Tom Wrenn's case:

Category #1 ? Emergency care and care of preliminary nature. Future management must be provided by an appropriately qualified physician. Consultation is requested in all cases in which doubt exists as to the diagnosis, where expected improvement is not soon apparent and when specialized therapeutic or diagnostic techniques are indicated.

(R p. 222) The hospital determined which and how many patients he would see, what assistance he would have, and what medicines and supplies would be available. The hospital controlled his referrals and controlled him in a myriad of other ways as discussed herein. 
          3. Is doing a specified piece of work at a fixed price or for a lump sum or upon a quantified basis. This factor is not present since Dr. Byrd was paid by the hour and not for a fixed price or for a lump sum or upon a quantitative basis. 
          4. Is not subject to discharge because he adopts one method of doing the work rather than another. As shown above (See B.4. infra, The Youngblood Factors) the hospital had the power to terminate Dr. Byrd immediately and without cause. Clearly, with this power, the hospital had the power to control Dr. Byrd's methods. 
          5. He is not in the regular employ of the other contracting party. Dr. Byrd admitted that he worked only at Maria Parham Hospital after his move to North Carolina in March 1989 until about May of 1990 when he went full-time to another hospital. He was in the regular, exclusive employ of Maria Parham Hospital during September of 1989. 
          6. He is free to use such assistants as he may think proper. It was the hospital which hired and fired assistants, decided the level of staffing necessary to assist Dr. Byrd, and decided which of its nurses and other employees to assign to assist Dr. Byrd. This factor showing contractorship is not present.
          7. He has full control over such assistants. Dr. Byrd had no control over critical matters such as discipline, pay, promotions, demotions, hirings, firings or assignments of other personnel. 
          8. He selects his own time. Dr. Byrd did not select his own time. He was required to appear for his twelve hour shifts "and remain on the premises" during his shift. (Coastal/Hospital Contract 2 b.; R p. 111; App. p. 2) 
         Almost every factor under North Carolina law showing agency rather than independent contractor is present in this case. The trial court therefore erred in granting defendant's motion for summary judgment on this issue. 

II. SUMMARY JUDGMENT WAS NOT PROPER BECAUSE THERE IS SUBSTANTIAL EVIDENCE THAT (A) DEFENDANT HOSPITAL HAD A NON-DELEGABLE DUTY TO PROVIDE PLAINTIFF WITH MEDICAL CARE, (B) THE MEDICAL CARE HE RECEIVED WAS NEGLIGENT, AND (C) THE NEGLIGENCE CAUSED HIM INJURY. 

ASSIGNMENT OF ERROR NO. 1 
ASSIGNMENT OF ERROR NO. 6 (R p. 656) 

A. The Contract Between Coastal and the Hospital Provides That the Hospital's Duty to Render Medical Care in its Emergency Department Is Non-delegable. 
          It is undisputed that the hospital owed plaintiff a non-delegable duty by express contractual terms and, further, that such a duty is imposed by applicable federal regulations. 

1Plaintiff alleged defendant's non-delegable duty in each Complaint filed in both actions. (R pp. 536, 623, 2)


         Paragraph 6 of the contract between Coastal and the hospital provides in pertinent part as follows:

6. Regulatory Requirements. The emergency services contemplated under the provisions of this Agreement shall at all times be maintained and operated, and such services shall at all times be rendered by Physicians in compliance with the applicable statutes, regulations, rules, and directives of Federal, State, and other governmental and regulatory bodies having jurisdiction over Hospital, the policies and regulations of the Hospital, the applicable standards of the Joint Commission on Accreditation of Healthcare Organizations...
(Coastal/Hospital contract 6; R p. 115; App. p. 6) Pursuant to 42 C.F.R. Section 482.12(e) the hospital's "...governing body must be responsible for services furnished in the hospital whether or not they are furnished under contracts." (R p. 490; App. p. 39) This federal regulation is part of the Medicare/Medicaid regulatory conditions for participation for hospitals. Maria Parham hospital participates in the Medicare and Medicaid programs. (Coastal/Hospital contract 22; R p. 121; App. p. 12) 
          In its Notice of Proposed Rulemaking ("NPRM") the HCFA stated that 42 C.F.R. 482.12(e), entitled "Standard for Contracted Services," applies to emergency services. Federal Register, Vol. 51, No. 116, Tuesday, June 17, 1986, Rules and Regulations, p. 22015. (App. p. 44) The HCFA also explained the reason for the regulation: "...there does not appear to be a clear understanding, or acceptance, of the hospital's responsibility for services provided under contract." Id. Therefore, the agency made the regulation effective in order to clarify that the hospital is required to remain responsible for providing safe and effective emergency patient care when it provides those services under contract:

NPRM provisions. The 1983 NPRM was intended to clarify that the hospital has ultimate responsibility for services, whether they are provided directly, such as by its own employees, by leasing, or through arrangement, such as formal contracts, joint ventures, informal agreements, or shared services. Because many contracted services are integral to direct patient care and are important aspects of health and safety, a hospital cannot abdicate its responsibility simply by providing that service through a contract with an outside resource. For purposes of assuring adequate care, the nature of the arrangement between the hospital and the "contractor" is irrelevant. The NPRM, therefore, proposed to specify that the governing body must be responsible for these services and that the services must be provided in a safe and effective manner. (Emphasis added)

Id. (App. p. 44)
       The Restatement (Second) of Torts notes that a non-delegable duty can be based on a statute or regulation imposing a duty on one person or entity to care for others:

One who by statute or by administrative regulation is under a duty to provide specified safeguards or precautions for the safety of others is subject to liability to the others for whose protection the duty is imposed for harm caused by the failure of a contractor employed by him to provide such safeguards or precautions.

Restatement (Second) of Torts 424, at 411 (1963). 
          The hospital owes direct and non-delegable duties to patients to provide safe and effective emergency care in accordance with acceptable standards of practice. 42 C.F.R. Sections 482.12 and 482.55. 42 C.F.R. Section 482.12(e)(1) provides that the hospital's "...governing body must ensure that the services performed under a contract are provided in a safe and effective manner." (R p. 490; App. p. 39) Moreover, 42 C.F.R. Section 482.55 requires that, "[t]he hospital must meet the emergency needs of patients in accordance with acceptable standards of practice." (R p. 494; App. p. 43) 42 C.F.R. Section 482.55(a)(l) provides that emergency services must be organized under the direction of a qualified member of the medical staff. In addition, 42 C.F.R. Section 482.55(b)(1) provides that the emergency services must be supervised by a qualified member of the medical staff. (R p. 494; App. p. 43) There is also an applicable JCAHO standard to the same effect. See ER.2.3 of the 1989 standards. (R p. 500) 
          Federal regulations and JCAHO standards are evidence of the applicable standard of care. Shumaker v. U.S., 714 F. Supp. 154 (M.D.N.C. 1988); Blanton v. Moses H. Cone Memorial Hospital. Inc., 319 NC. 372, 354 S.E.2d 455 (1987). Also, violation of a safety regulation is negligence per se under North Carolina law. Baldwin v. GTE South, Inc., 335 N.C. 544, 439 S.E.2d 108 (1994). Therefore, by operation of law and by the terms of the Agreement between Coastal and Maria Parham, the hospital could not delegate its duty to provide safe and effective emergency services to Mr Wrenn. 

B. The Provision of Emergency Services Is So Important to the Community That the Hospital's Duty to Provide Care Should Be Non-delegable. 

          The hospital's non-delegable duty to Mr. Wrenn is established in this case by the hospital's contract with Coastal and by applicable federal regulations as discussed hereinabove. Furthermore, under longstanding North Carolina law, the hospital should not be permitted to abdicate its responsibility for the care provided in its emergency department. "'[A]n employer who by reason of his calling or the business in which he is engaged, owes special legal duties and obligations to the public...cannot shirk or evade such special duties and obligations by committing its performance to another.'" Wright v. Wright, 229 N.C. 503, 50 S.E.2d 540, 544 (1948). "A duty is non?delegable if the responsibility is so important to the community that the employer should not be permitted to transfer it to another." Medley v. N.C. Department of Correction, 330 N.C. 837, 841, 412 S.E.2d 654, 657(1992), quoting Prosser & Keeton on the Law of Torts, 71 at 512 (5th ed. 1984). North Carolina courts have recognized non?delegable duties in such varied contexts as taxicab operations, Wright v. Wright, supra.; children's needs, Pace v. Pace, 244 N.C. 698, 699, 94 S.E.2d 819, 821 (1956); construction companies, Deitz v. Jackson, 57 N.C. App. 275, 291 S.E.2d 282 (1982); trucking franchises, Brown v. Bottoms Truck Lines, 277 N.C. 299, 42 S.E.2d 71 (1947); and trench digging, Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222 (1991). 
          In Medley v. N.C. Department of Correction, 330 N.C. at 837, 412 S.E.2d at 654 (1992), the North Carolina Supreme Court held that the State had a non?delegable duty to provide medical services to prison inmates. Although Medley involved the constitutional rights of prisoners, its reasoning is applicable to this case because of the Court's acknowledgment of the vital nature of medical services. 
          The provision of emergency services is at least as important as other duties that North Carolina courts have held to be non?delegable. As a licensed hospital, Maria Parham Hospital is required to comply with state regulations designed to "promote public health, safety and welfare and to provide for the development, establishment and enforcement of basic standards for the care and treatment of patients in hospitals." N.C.G.S. 131E-75. By state regulation, licensed hospitals are required to operate an emergency service. N.C.A.C., T 10. 03C.1001 (R p. 496; App. p. 36), staffed by "one or more duly licensed physicians...available or on call for emergencies at all times." N.C.A.C., T. 10 03C.0406 (R p. 495; App. p. 35) State regulations require hospitals to maintain standards of quality in the provision of emergency services: "The medical staff shall provide for prompt, competent medical attention for all emergency patients as their respective needs may dictate," and "...shall assure itself of the competence of all physicians having emergency room duties..." N.C.A.C., T. 10, 03C.1002(a) and (c). (R p. 496; App. p. 36) Hospitals should not be able to escape responsibility for their state?mandated duties by delegating the performance of those duties to independent contractors. 
          Courts in other jurisdictions have declared the provision of emergency services to be a non?delegable duty. In Jackson v. Power, 743 P.2d 1376 (Alaska 1987), the Alaska Supreme Court found that, under state statutes and regulations, hospitals "had a duty to provide emergency room services and that part of that duty was to provide physician care in its emergency room." 743 P.2d at 1383. The court rejected the argument that the physician's status as an independent contractor shifted legal responsibility from the hospital:

We simply cannot fathom why liability should depend upon the technical employment status of the emergency room physician who treats the patient. It is the hospital's duty to provide the physician, which it may do through any means at its disposal. The means employed, however, will not change the fact that the hospital will be responsible for the care rendered by physicians it has a duty to provide.

Id. at 1385. Citing many of the same authorities relied upon by our Supreme Court in Medley, the Alaska Supreme Court held that "a general acute care hospital's duty to provide physicians for emergency room care is non?delegable." Id. Accord, Griffin v. Matthews, 36 Ohio App. 3d 228, 522 N.E.2d 1100 (Ohio App. 1987); Martell v. St. Charles Hosp., 523 N.Y.S.2d 342 (Sup. 1987). More recently, the Court of Appeals of Texas imposed a non-delegable duty on hospitals to be responsible for care provided in emergency departments. Sampson v. Baptist Memorial Hosp., 940 S.W.2d 128 (Tx. App. - San Antonio 1996). In Sampson, the Court pointed to state laws requiring hospitals to make physicians available for emergency services and have an emergency service with appropriate facilities, and JCAHO standards requiring hospitals to provide emergency services. Id. at 137. Identical laws and standards are applicable in this case. 
          Because defendant had a non-delegable duty to provide emergency services to Tom Wrenn, the hospital is vicariously liable for Dr. Byrd's negligence, and the trial Court erred in granting summary judgment. 

III. SUMMARY JUDGMENT WAS NOT PROPER BECAUSE THERE IS SUBSTANTIAL EVIDENCE THAT NEGLIGENCE BY DEFENDANT'S NURSES WAS A CAUSE OF PLAINTIFF'S INJURIES. 

ASSIGNMENT OF ERROR NO. 1 
ASSIGNMENT OF ERROR NO. 3 (R p. 656)

A. Plaintiff's Claim for Nursing Negligence Is Not Barred by the Statute of Limitations.

          Although the parties engaged in extensive discovery on allegations of negligence regarding nursing, credentialing and quality assurance , defendant argued at the summary judgment hearing that these allegations were barred by the statute of limitations. Defendant conceded that all of the allegations were alleged in the Complaint filed in the 1992 action, but claimed that the Amended Complaint filed in that action in 1994, and the Complaint filed in this action in 1995, omitted the claims. However, in making this argument, defendant ignores the pleadings and North Carolina case law. 
          The Amended Complaint alleged that Coastal was acting as the hospital's

1See, i.e., Hohenhaus dep. and affidavit (R p. 458; App. p. 31) (plaintiff's nursing expert), Schweinsberg dep. (defendant's nursing expert), Ferguson dep. (one of plaintiff's emergency medicine experts), Bitterman dep. and affidavit (R p. 465; App. p. 21)(plaintiff's quality assurance expert), White dep. and affidavit (R p. 436; App. p. 26) (plaintiff's credentialing expert).

agent ( 13). In addition to alleging the negligence of Dr. Byrd acting as the agent for Coastal and the hospital, the Amended Complaint alleged that the defendants were negligent by failing to properly select, train and supervise Dr. Byrd, by failing to oversee and monitor plaintiff's treatment, by failing to assure that plaintiff would be examined by competent medical personnel and by failing to assure that the plaintiff would be admitted to the hospital and treated for his life-threatening condition. (R pp. 631, 632) Substantially similar allegations are contained in the Complaint in this action. (R pp. 10, 11) 
          The Amended Complaint in the first action and the Complaint in this action sufficiently pleaded negligent credentialing, negligence in providing quality assurance, and nursing negligence. Therefore, none of those aspects of the hospital's negligence could possibly be barred by the statute of limitations. 
          A "claim" is simply "a cause of action." Black's Law Dictionary, 6th Ed. 247 (1990). A cause of action is "...the existence of a set of facts justifying judicial relief." In re Watson, 70 N.C. App. 120, 122, 318 S.E.2d 544, 546 (1984), disc. review denied, 313 N.C. 330, 327 S.E.2d 900 (1985), (citing Exum v. Boyles, 272 N.C. 567, 158 S.E.2d 845(1968)). Because the Complaint in this action alleges the same transaction or occurrence as the facts alleged in the Amended Complaint in the prior action, and provides more than sufficient notice of quality assurance, credentialing and negligence claims, those claims are not barred by the statute of limitations.

2At the summary judgment hearing defendant attempted to rely on Stanford v. Owens, 76 N.C. App. 284, 332 S.E.2d 730 (1985), review denied, 314 N.C. 670, 336 S.E.2d 402 (1985) in support of its statute of limitations argument. Stanford is clearly distinguishable because it involved an effort to relate back a new fraud cause of action when the original pleading only pleaded negligence. The Court noted that fraud is unique and is not negligence, so that the statute of limitations applied. Here, plaintiff not only has
 
          Even if defendant's construction of the pleadings were correct it was not entitled to summary judgment, because in negligence actions, the statute of limitations does not run as to additional or different theories of negligence as long as they are based on the same transactions or occurrences of which the defendant had notice. Estrada v. Jaques, 70 N.C. App. 627, 321 S.E.2d 240 (1984) (amendment that surgeons negligently performed surgery related back to avoid statute of limitations defense even though original complaint alleged only that surgeons had failed to obtain proper informed consent); You v. Roe, 97 N.C.App. 1, 387 S.E.2d 188 (1990), cert. denied, 326 N.C. 366 (1990)(amendment after statute of limitations had run alleging new theories of negligence related back to the filing date of the original complaint alleging only that the plaintiff's involuntary commitment was negligent, because the amendment was based on the same transaction or occurrence as the original complaint); Bowlin v. Duke University, 119 N.C. App. 178, 457 S.E.2d 757 (1995) (plaintiff amended her complaint after the statute of limitations expired to allege a new theory of negligence, then took a voluntary dismissal under Rule 41 and refiled her amended complaint within one year; held that the statute of limitations did not bar the claim because the original pleading gave defendant sufficient notice of the amended claim). 

          Plaintiff's negligence claim against the hospital is that he was negligently discharged from its emergency department in an unstable condition causing him grave injury. The several aspects of negligence which he now pursues including nursing, credentialing and quality assurance, are all subsumed within his basic claim. Not only has there been discovery directed to these issues, but both parties have employed and put forward experts to advance their respective positions. The statute of limitations has not run. Moreover, defendant's overly narrow construction of the definition of a claim is incorrect as recently held by this Court in Richardson v. McCracken Enterprises, Inc., 126 N.C. App. 506, 485 S.E.2d 844 (1997), disc. rev. denied 347 N.C. 269, 493 S.E.2d 745 (1997), in which this Court ruled that for Rule 41 purposes, a claim is defined by the broader "same transaction or occurrence" test rather than by application of a strict "same claim" test. 
           Defendant also argued at the summary judgment hearing that the rule that notice of transactions and occurrences tolls the statute of limitations only applies to Rule 15 motions to amend, not to Rule 41. This argument is illogical and without authority. See Bowlin, supra
          Defendant further contended at the summary judgment hearing that it could not be held liable for any negligence of Coastal in managing the emergency department, selecting and supervising physicians, and enforcing policies that nurses should intervene in cases where a discharge of a patient is or may be life-threatening. The hospital maintained that under corporate negligence theories it can be held liable only for its own "direct" negligence and not for negligence of an agent. Our Supreme Court in discussing corporate negligence claims in Blanton v. Moses H. Cone Memorial Hospital, Inc., 319 N.C. 372, 354 S.E.2d 455 (1987), noted that "[a] corporation can act only through its agents. (citation omitted) If it is liable for negligence it has to be through the doctrine of respondeat superior." 354 S.E.2d at 457. Under the corporate negligence doctrine, the hospital was acting through its agents Dr. Byrd, the nurses, and Coastal, that was providing direction of the emergency department. As Blanton teaches, corporate negligence occurs through the application of respondeat superior, and not by some abstract principle of "direct" negligence. 

B. Plaintiff Produced Substantial Evidence That He Was Injured by Nursing Negligence.

Plaintiff presented substantial evidence that the hospital's nurses breached standards of practice for nurses in caring for Tom Wrenn and that their breach contributed to the discharge of Tom Wrenn in an unstable condition, thus causing his injuries. (i.e., Hohenhaus affidavit, R p. 458, App. p. 31; Bitterman affidavit R p. 465, App. p. 21) The trial court erred by granting defendant's motion for summary judgment on this issue. 

IV. SUMMARY JUDGMENT WAS NOT PROPER BECAUSE THERE IS SUBSTANTIAL EVIDENCE THAT NEGLIGENCE BY DEFENDANT HOSPITAL IN FAILING TO FOLLOW AN ADEQUATE QUALITY ASSURANCE PROGRAM WAS A CAUSE OF PLAINTIFF'S INJURIES. 

ASSIGNMENT OF ERROR NO. 1 
ASSIGNMENT OF ERROR NO. 4 (R p. 656) 

           Plaintiff's quality assurance claim is not barred by the statute of limitations. See III.A. infra. A hospital in North Carolina has "...a duty to monitor on an ongoing basis the performance of physicians on its staff..." Blanton v. Moses H. Cone Memorial Hospital, Inc., supra, 354 S.E.2d at 458. 
           ER.9 provides that the quality and appropriateness of patient care provided by the emergency department be monitored and evaluated and identified problems resolved. ER.9.1.1 requires that this process be implemented by "the physician director of the emergency department." Dr. Byrd was not permitted to practice independently. His credentials were restricted to category 1, which required him to seek consultation in treating patients such as Tom Wrenn. (R p. 222) However, the hospital did not have a Director of the Emergency Department when Tom Wrenn was treated by Dr. Byrd. (R pp. 48, 561) The hospital's negligence in this regard and more generally in failing to implement an acceptable quality assurance program, were causes of Tom Wrenn's injuries. (Bitterman affidavit, R p. 465; App. p. 21) The trial court erred in granting defendant's motion for summary judgment on this issue. 

V. SUMMARY JUDGMENT WAS NOT PROPER BECAUSE THERE IS SUBSTANTIAL EVIDENCE THAT NEGLIGENCE BY THE DEFENDANT HOSPITAL IN CREDENTIALING DR. BYRD WAS A CAUSE OF PLAINTIFF'S INJURIES. 

ASSIGNMENT OF ERROR NO. 1 
ASSIGNMENT OF ERROR NO. 5 (R p. 656) 

          Plaintiff's credentialing claim is not barred by the statute of limitations. See III.A. infra. The hospital failed to exercise reasonable care when it granted Dr. Byrd privileges to treat patients in its emergency department. Dr. J. Douglas White testified in his deposition (White dep.) and stated in his affidavit (R p. 438; App. p. 28) that the hospital breached its duties and standards of practice by granting privileges to Dr. Byrd because Dr. Byrd had failed his Board Certification examination in Internal Medicine, the field he had trained in, he had not undergone formal training in Emergency Medicine, and he failed to otherwise demonstrate his professional competence and ability to provide emergency care in accordance with the standards set forth in the contract between Coastal and Maria Parham Hospital. That contract required that the emergency services "...shall at all times be rendered by physicians in compliance with...all currently accepted and approved methods and practices of the professional specialty of emergency medicine." (R p. 115; App. p. 6) Thus the hospital failed to "assure itself of the competence" of Dr. Byrd. N.C.A.C., T.10, Section 03C.1002(c) (R p. 496; App. p. 36)
          A hospital in North Carolina owes a duty of care to its patients to ascertain that a doctor is qualified before granting him staff privileges. Blanton v. Moses H. Cone Memorial Hosp., Inc., 319 N.C. 372, 375, 354 S.E.2d 455, 458 (1987). Plaintiff presented substantial evidence that the Hospital was negligent in credentialing Dr. Byrd, and that Dr. Byrd's negligence caused the plaintiff's injuries. (R p. 436) Therefore, the trial court erred in granting defendant summary judgment on this issue.

VI. THERE IS SUBSTANTIAL EVIDENCE ENTITLING PLAINTIFF TO PUNITIVE DAMAGES. 
ASSIGNMENT OF ERROR NO. 1 (R p. 656) 
ASSIGNMENT OF ERROR NO. 7 (R p. 657) 
          Plaintiff presented substantial evidence that defendant's conduct in negligently causing his injuries was aggravated. Aggravated conduct can include a reckless or wanton disregard of the plaintiff's rights or conduct in known violation of law. Rogers v. T.J.X Companies, Inc., 329 N.C. 226, 230-231, 404 S.E.2d 664, 666-667 (1991); Van Leuven v. Motor Lines, 261 N.C. 539, 546, 135 S.E.2d 640, 645 (1964); Hinson v. Dawson, 244 N.C. 23, 27, 92 S.E.2d 393, 396 (1956). For example, in his affidavit, J. Douglas White, M.D., expressed his opinion that Dr. Byrd's conduct in discharging Tom Wrenn from the emergency department was aggravated:

3N.C.G.S. Chapter 1 D, entitled "Punitive Damages," became effective January 1, 1996 and applies to claims arising on or after that date. Therefore, Chapter 1 D does not apply to this case. The law applicable to this case allows punitive damages based on the jury's finding that defendant's conduct was aggravated.

...[Dr. Byrd's conduct] was particularly aggravated and dangerous because Mr. Wrenn's signs and symptoms were all consistent with a life-threatening, infectious disease process such as bacterial or rickettsial sepsis...

(R p. 436; App. p. 28) 
          The hospital's conduct was further aggravated, reckless and in known violation of law in that the hospital allowed Dr. Byrd to treat Tom Wrenn without supervision or consultation despite its knowledge that Dr. Bryd had restricted privileges requiring consultation. (R p. 222) Moreover, the hospital, in known violation of federal regulations (42 C.F.R. 482.55 (a)(1) and (b)(1); App. p. 43) and JCAHO standards (JCAHO Standard ER.2.3, R p. 500) that the hospital had expressly incorporated into its contract with Coastal (R p. 115; App. p. 3), did not have a Director of its Emergency Department and therefore did not supervise Dr. Byrd as required. (R pp. 48, 561) 
          Because plaintiff presented substantial evidence that defendant's conduct in causing his injuries was aggravated, the trial court erred in granting defendant's motion for summary judgment on the issue of punitive damages. 

CONCLUSION

          Based on the foregoing reasoning and authorities, plaintiff respectfully requests this Court to reverse the Order of the trial court granting summary judgment to the defendant, and to remand this action to the Superior Court of Durham County for trial. 
          Respectfully submitted this ___ day of ____________, 1998. 
                                              FERGUSON, STEIN, WALLAS, ADKINS, GRESHAM & SUMTER, PA

_______________________________ 
Adam Stein 
Henderson Hill 
312 West Franklin Street 
Chapel Hill, North Carolina 27516 
Telephone: (919) 933?5300

James E. Ferguson, II 
741 Kenilworth Ave., Suite 300 
Charlotte, North Carolina 28204 
Telephone: (704) 375?8461

BENTLEY & ASSOCIATES, P.A.

_________________________________________ 
Charles A. Bentley, Jr. 
Post Office Box 52089
Durham, North Carolina 27717-2089 
(919) 489-1330 
Attorneys for Plaintiff-Appellant

CERTIFICATE OF SERVICE

          I do hereby certify that on this ___ day of ___________, 1998, I served a copy of the foregoing PLAINTIFF-APPELLANT'S BRIEF on counsel for the defendant-appellee Maria Parham Hospital, Inc. by depositing a copy of same in the United States Post Office, with first class postage prepaid and properly addressed as follows:

Beth R. Fleishman 
Robin T. Morris POYNER & SPRUILL, L.L.P. 
Post Office Box 10096 
Raleigh, NC 27605-0096 


___________________________________ 
Charles A. Bentley, Jr.

APPENDIX

Contents                                                                                                                         Page
CONTRACT BETWEEN COASTAL AND HOSPITAL.......................................................... 1-14
CONTRACT BETWEEN BYRD AND COASTAL................................................................. 15-16
AFFIDAVIT OF NEAL LITTLE, M.D................................................................................... 17-20
AFFIDAVIT OF ROBERT A. BITTERMAN, M.D.................................................................. 21-25
AFFIDAVIT OF J. DOUGLAS WHITE, M.D........................................................................ 26-30
AFFIDAVIT OF SUSAN F. HOHENHAUS, R.N.................................................................. 31-34
NORTH CAROLINA ADMINISTRATIVE CODE................................................................... 35-36
CODE OF FEDERAL REGULATIONS............................................................................... 37-43
FEDERAL REGISTER..................................................................................................... 44

 

 



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