Acosta v. Byrum, COA06-106.

Docket NºNo. COA06-106.
Citation638 S.E.2d 246
Case DateDecember 19, 2006
CourtCourt of Appeal of North Carolina (US)
638 S.E.2d 246
Heather D. ACOSTA, Plaintiff,
Robin BYRUM, Shirley Smith, Beverly Edwards, M.D. and David R. Faber, II, M.D., Defendants.
No. COA06-106.
Court of Appeals of North Carolina.
December 19, 2006.

Page 247


Page 248

Appeal by plaintiff from an order entered 13 September 2005 by Judge W. Russell Duke, Jr. in Pitt County Superior Court. Heard in the Court of Appeals 11 October 2006.

Mills & Economos, L.L.P., by Larry C. Economos, Greenville, for plaintiff-appellant.

Hornthal Riley Ellis & Maland, LLP, by John D. Leidy, Elizabeth City, for defendant-appellee Robin Byrum.

Battle Winslow Scott & Wiley, P.A., by Marshall A. Gallop, Jr., Rocky Mount, for defendant-appellee Shirley Smith.

Roswald B. Daly, Jr. and Baker Jones, Ahoskie, for defendant-appellee Beverly Edwards, M.D.

Poyner & Spruill, LLP, by J. Nicholas Ellis and Jenny L. Matthews, Rocky Mount, for defendant-appellee David R. Faber, II, M.D.

HUNTER, Judge.

Heather D. Acosta ("plaintiff") appeals from an order dismissing her complaint against David R. Faber, II, M.D. ("Dr.Faber") with prejudice. For the reasons stated herein, we reverse.

The issue in this case is whether the trial court properly dismissed plaintiff's complaint as to Dr. Faber. Plaintiff argues that the complaint stated a valid claim against Dr.

Page 249

Faber for negligent infliction of emotional distress.

On 12 May 2005, plaintiff filed an action alleging invasion of privacy and intentional infliction of emotional distress against Robin Byrum ("Byrum") and negligent infliction of emotional distress against Dr. Faber. Similar additional claims were made against two other defendants not associated with Psychiatric Associates of Eastern Carolina ("Psychiatric Associates").

Plaintiff was a patient of Psychiatric Associates, which is located in Ahoskie, North Carolina. She was also employed by Psychiatric Associates from September 2003 until early spring of 2004. Psychiatric Associates is owned by Dr. Faber, a citizen and resident of Alabama. Byrum was the office manager at Psychiatric Associates during the time period at issue. Plaintiff alleged that Byrum had severe personal animus towards plaintiff.

Plaintiff alleged that Dr. Faber improperly allowed Byrum to use his medical record access number. Numerous times between 31 December 2003 and 3 September 2004, Byrum used Dr. Faber's access code to retrieve plaintiff's confidential psychiatric and other medical and healthcare records. Byrum then provided information contained in those records to third parties without plaintiff's authorization or consent.

Plaintiff alleged in her complaint that by providing Byrum with his access code, Dr. Faber violated the rules and regulations established by University Health Systems, Roanoke Chowan Hospital, and the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"). Plaintiff alleged that she experienced severe emotional distress, humiliation, and anguish from the exposure of her medical records to third parties. Plaintiff alleged that Dr. Faber knew or should have known that his negligence would cause severe emotional distress.

Responding to these claims, Dr. Faber filed a motion to dismiss pursuant to Rules 12(b)(2) and (6). After a hearing, the trial court granted Dr. Faber's motion to dismiss. Plaintiff appeals from that order.

I. Interlocutory Appeal

We must first decide whether this appeal is properly before the Court. When multiple parties are involved in a lawsuit, the trial court may make "a final judgment as to one or more but fewer than all of the claims or parties[.]" N.C. Gen.Stat. § 1A-1, Rule 54(b) (2005). Appeal of an order dismissing one of the parties to a suit is interlocutory. Hoots v. Pryor, 106 N.C.App. 397, 400, 417 S.E.2d 269, 272 (1992) ("[i]nterlocutory orders are those made during the pendency of an action which do not dispose of the case but leave it for further action by the trial court in order to settle and determine the entire controversy"). Interlocutory appeals are heard only in two circumstances: (1) when a judge certifies that there is no reason to delay the appeal; or (2) a substantial right of the appellant is affected. Davis v. Davis, 360 N.C. 518, 524-25, 631 S.E.2d 114, 119 (2006).

Here, plaintiff's appeal is interlocutory as only the complaint against Dr. Faber was dismissed and claims remain against the other three defendants. Since the trial court made no certification, the dismissal must affect a substantial right of plaintiff in order for this appeal to be heard. Avoiding two trials on the same factual issues affects a substantial right because separate trials might render "inconsistent verdicts on the same factual issue." Green v. Duke Power Co., 305 N.C. 603, 608, 290 S.E.2d 593, 596 (1982). The claim against Dr. Faber is factually similar to the claims against the other three defendants. Thus, a dismissal of the claim against Dr. Faber raises the possibility of inconsistent verdicts in later proceedings. See Clontz v. St. Mark's Evangelical Lutheran Church, 157 N.C.App. 325, 327-28, 578 S.E.2d 654, 657 (2003) (motion to dismiss two of the defendants subject to review because of "the right to try the issues of liability as to all parties before the same jury as well as the right to avoid inconsistent verdicts in separate trials are implicated"). Dr. Faber does not dispute that this matter affects a substantial right of the plaintiff. Accordingly, we review plaintiff's appeal under the substantial right exception to the general rule prohibiting interlocutory appeals.

Page 250

II. Sufficiency of the Complaint

Plaintiff argues that the complaint should not have been dismissed because it sufficiently stated a claim for negligent infliction of emotional distress against Dr. Faber. We agree.

The appropriate standard of review for a motion to dismiss is "`"whether, as a matter of law, the allegations of the complaint . . . are sufficient to state a claim upon which relief may be granted[.]"'" Hunter v. Guardian Life Ins. Co. of Am., 162 N.C.App. 477, 480, 593 S.E.2d 595, 598 (2004) (citations omitted). The review is de novo. Leary v. N.C. Forest Prods., Inc., 157 N.C.App. 396, 400, 580 S.E.2d 1, 4 (2003). For purposes of a 12(b) motion, allegations of fact from the complaint are taken as true. Cage v. Colonial Building Co., 337 N.C. 682, 683, 448 S.E.2d 115, 116 (1994). "The complaint must be liberally construed, and the court should not dismiss the complaint unless it appears beyond a doubt that the plaintiff could not prove any set of facts to support his claim which would entitle him to relief." Block v. County of Person, 141 N.C.App. 273, 277-78, 540 S.E.2d 415, 419 (2000). The plaintiff must allege the substantive elements of a valid claim. Hewes v. Johnston, 61 N.C.App. 603, 604, 301 S.E.2d 120, 121 (1983).

Rule 8 of the North Carolina Rules of Civil Procedure governs complaints. A complaint must contain "[a] short and plain statement of the claim sufficiently particular to give the court and the parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved showing that the pleader is entitled to relief[.]" N.C. Gen.Stat. § 1A-1, Rule 8(a)(1) (2005). The rule further states: "Each averment of a pleading shall be simple, concise, and direct." N.C. Gen.Stat. § 1A-1, Rule 8(e)(1). Moreover, notice pleadings "need not contain detailed factual allegations to raise issues." Southern of Rocky Mount v. Woodward Specialty Sales, 52 N.C.App. 549, 553, 279 S.E.2d 32, 34 (1981).

Plaintiff claims that Dr. Faber caused severe emotional distress to plaintiff when he negligently provided his medical access code to Byrum. The substantive elements of negligent infliction of emotional distress are: "(1) the defendant negligently engaged in conduct, (2) it was reasonably foreseeable that such conduct would cause the plaintiff severe emotional distress . . ., and (3) the conduct did in fact cause the plaintiff severe emotional distress." Johnson v. Ruark Obstetrics, 327 N.C. 283, 304, 395 S.E.2d 85, 97 (1990). Therefore, in analyzing the sufficiency of the complaint, the dispositive question becomes whether plaintiff sufficiently stated a claim for negligent infliction of emotional distress for which relief can be granted.

When analyzing a 12(b)(6) motion, the court is to take all factual allegations as true, but should not presume legal conclusions to be true. Miller v. Rose, 138 N.C.App. 582, 592, 532 S.E.2d 228, 235 (2000). The court, however, is concerned with the law of the claim, not the accuracy of the facts that support a 12(b)(6) motion. Snyder v. Freeman, 300 N.C. 204, 209, 266 S.E.2d 593, 597 (1980) (citation omitted) ("`[t]he function of a motion to dismiss is to test the law of a claim, not the facts which support it'"). Furthermore, "`a complaint should not be dismissed for insufficiency unless it appears to a certainty that plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim.'" Sutton v. Duke, 277 N.C. 94, 103, 176 S.E.2d 161, 166 (1970) (emphasis omitted) (citation omitted). In the instant case, plaintiff alleges all the substantive elements of negligent infliction of emotional distress. Moreover, plaintiff alleges sufficient facts to support these claims.

Plaintiff first contends she sufficiently alleged defendant's negligence. Plaintiff alleged that defendant negligently engaged in conduct by permitting Byrum to use his access code in violation of the rules and regulations of the University Health Systems,...

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