809 S.E.2d 368 (N.C.App. 2018), COA17-860, Ragsdale v. Whitley
|Citation:||809 S.E.2d 368|
|Opinion Judge:||ARROWOOD, Judge.|
|Party Name:||Krista RAGSDALE, Guardian Ad Litem for Alec Seeburger, Plaintiff, v. Dr. John M. WHITLEY and Cumberland County Hospital System, Inc., d/b/a Cape Fear Valley Health System, Defendants.|
|Attorney:||Coy E. Brewer, Jr. and Allen W. Rogers, Fayetteville, for plaintiff-appellant. Parker Poe Adams & Bernstein LLP, Raleigh, by Michael J. Crook and Patrick M. Meacham, for defendant-appellees.|
|Judge Panel:||Judges STROUD and ZACHARY concur.|
|Case Date:||January 02, 2018|
|Court:||Court of Appeals of North Carolina|
Heard in the Court of Appeals 29 November 2017.
Appeal by plaintiff from order entered 16 May 2017 by Judge Beecher R. Gray in Cumberland County Superior Court. Cumberland County, No. 15 CVS 9497
Coy E. Brewer, Jr. and Allen W. Rogers, Fayetteville, for plaintiff-appellant.
Parker Poe Adams & Bernstein LLP, Raleigh, by Michael J. Crook and Patrick M. Meacham, for defendant-appellees.
Krista Ragsdale (" Krista" ), guardian ad litem for Alec Seeburger (" Alec" ), (" plaintiff" ) appeals from an order granting summary judgment in favor of Dr. John Whitley (" Dr. Whitley" ) and Cumberland County Hospital System, Inc., d/b/a Cape Fear Valley Health System (" defendants" ). For the reasons stated herein, we reverse the order of the trial court and remand for further proceedings.
On 20 May 2015, Alec filed a complaint for medical malpractice against Dr. Whitley and Cape Fear Valley Neurosurgery d/b/a Cape Fear Valley Health System Specialty Group, LLC f/k/a Cape Fear Valley Health System, Inc. On 12 November 2015, Alec voluntarily dismissed the complaint pursuant to Rule 41 of the North Carolina Rules of Civil Procedure.
On 7 December 2015, plaintiff was appointed as guardian ad litem (" GAL" ) for Alec. In an order filed 31 December 2015, the trial court stated that " [i]t appears to the Court from [Kristas] affidavit and the statement from his treating physician that Alec [ ] is incapable of conducting his own affairs and is entitled to the appointment of a Guardian ad Litem."
On 31 December 2015, plaintiff refiled the complaint against defendants. On 5 April 2016, plaintiff filed an amended complaint. Plaintiff alleged as follows: Alec was born on 19 January 1996 and was until his eighteenth birthday on 19 January 2014, " a minor and was then, continuously has been and is presently under a disability preventing him from initiating this civil action for medical malpractice and professional negligence by the Defendants in this case." Plaintiff alleged that her claim was filed within the applicable statute of repose in that the last act giving rise to the cause of action occurred on 12 February 2012, when defendants negligent treatment of Alec was discovered. In February of 2011, Alec began experiencing peripheral vision difficulties and was later diagnosed with having a large pituitary adenoma. A blood test to determine prolactin levels of the large pituitary adenoma could determine whether it should be treated surgically or medically. Plaintiff alleged that Dr. Whitley, Alecs neurosurgeon, when evaluating the need for and extent of brain surgery, and while treating Alec after surgery, negligently failed to assess the nature of the adenoma by failing to order a blood test to determine whether the pituitary adenoma could be treated medically instead of surgically.
Alec underwent surgery with Dr. Whitley on 6 March 2011. The surgery resulted in substantial swelling of Alecs brain, proximately causing a severe stroke and " severe, permanent, and debilitating neurological damage in addition to the severe, permanent, and debilitating neurological damage previously caused by the extensive and invasive brain surgery performed by Defendant Whitley." Plaintiff further alleged that surgery was unnecessary and inappropriate because Alec had a prolactinoma which should have been treated medically rather than surgically. Dr. Whitleys failure to order a blood test was a departure from the required or expected standard of care. Dr. Whitley continued to treat Alec until or about 12 February 2012,
during which time Alec " experienced great pain and suffering, inability to see or walk and substantial neurological deficits."
Plaintiff alleged that in February of 2012, Alec began receiving medical services from Dr. Gerald Grant (" Dr. Grant" ). Dr. Grant ordered a blood test which established that Alecs " tumor was a prolactinoma which was treatable medically." Plaintiff alleged that Dr. Whitleys surgery and the delay in beginning appropriate medical treatment of the tumor had proximately caused " severe and permanent neurological and physiological damage" to Alec.
On 6 May 2016, defendants filed an answer to the amended complaint. On 27 February 2017, defendants also filed a motion for summary judgment pursuant to Rule 56 of the North Carolina Rules of Civil Procedure.
In a 16 May 2017 order, the trial court granted defendants motion for summary judgment and recited the basis of its determination: IT APPEARING TO THE COURT that this is a medical malpractice...
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