Grant v. High Point Regional Health System

• Decision Date: 19 June 2007
• Docket Number: No. COA06-1079.,COA06-1079.
• Citation: 645 S.E.2d 851
• Court: North Carolina Court of Appeals
• Parties: Betty L. GRANT, Executrix of the Estate of Tommy J. Grant, Plaintiff-Appellant, v. HIGH POINT REGIONAL HEALTH SYSTEM, Defendant-Appellee.

645 S.E.2d 851

Betty L. GRANT, Executrix of the Estate of Tommy J. Grant, Plaintiff-Appellant, v. HIGH POINT REGIONAL HEALTH SYSTEM, Defendant-Appellee.

No. COA06-1079.

Court of Appeals of North Carolina.

June 19, 2007.

Appeal by Plaintiff from order entered 10 February 2006 by Judge John O. Craig, III in Superior Court, Guilford County. Heard in the Court of Appeals 15 March 2007.

Kennedy, Kennedy, Kennedy & Kennedy, L.L.P., by Harvey L. Kennedy and Harold L. Kennedy, III, Winston-Salem, for Plaintiff-Appellant.

Sharpless & Stavola, P.A., by Joseph P. Booth, III, Greensboro, for Defendant-Appellee.

McGEE, Judge.

Betty L. Grant (Plaintiff), Executrix of the Estate of Tommy J. Grant (decedent), filed an amended complaint against High Point Regional Health System (Defendant) on 4 June 2004. Plaintiff alleged in the complaint that Defendant owned and operated High Point Regional Hospital (the hospital). Plaintiff further alleged the following: Decedent went to the hospital's emergency room on or around 13 September 2000 complaining of excruciating knee pain. X-rays were taken of decedent's knee. However, "by the time that [decedent's] knee cancer was finally diagnosed by any physician(s), [decedent's] cancer was substantially advanced and his situation was terminal." Decedent died on 17 February 2003.

Patti L. Holt, one of Plaintiff's attorneys, sent a letter to the hospital on 31 August 2003 stating that she represented decedent's estate with respect to a potential medical negligence claim. The letter also requested "emergency room and radiology records and films generated during the period of June 1, 2000 to December 31, 2000." Defendant did not respond to this request. Plaintiff's attorney then spoke by telephone with a hospital employee named "Rose" on 15 September 2003. Rose told Plaintiff's attorney that decedent's x-rays from 13 September 2000 "were present" at the hospital. Rose requested that Plaintiff's attorney send another medical release form because the first release had not been forwarded to Rose. Plaintiff's attorney sent another release. Plaintiff's attorney did not receive decedent's x-rays or records by 23 September 2003, and she called Rose to inquire about the records. Rose told Plaintiff's attorney that she could not find decedent's x-rays.

In the following months, Plaintiff's attorney tried, unsuccessfully, to obtain decedent's x-rays and records from Defendant. On 14 January 2004, Plaintiff's attorney sent Defendant a subpoena to produce decedent's x-rays and records. Defendant responded on 20 January 2004 that the x-rays were "not in [decedent's] folder" and "had not been checked out."

Plaintiff further alleged that

the failure of the hospital to maintain the x-ray film taken on September 13, 2000 has effectively precluded ... Plaintiff from being able to successfully prosecute a medical malpractice action against ... Defendant hospital and others. Furthermore, at this time the missing x-rays have prevented Plaintiff's counsel from securing the Rule 9(j) certification. That ... Defendant Hospital was required to keep, maintain and preserve all medical records, including x-rays, for 11 (eleven) years pursuant to N.C.A.C. 10A: N.C.A.C. 13B.3903, and the rules and regulations of the Joint Commission on Accreditation of Healthcare Organizations (JCAHO).

Plaintiff also alleged that Defendant "intentionally and/or recklessly destroyed the x-ray film of ... [d]ecedent ... after [Defendant] was placed on notice of a potential medical malpractice claim against ... Defendant hospital on August 31, 2003." In the alternative, Plaintiff alleged that Defendant was negligent and careless in failing to maintain and preserve the x-rays. Plaintiff alleged Defendant's conduct amounted to spoliation and common law obstruction of justice. Plaintiff also alleged that as a direct and proximate result of Defendant's spoliation and common law obstruction of justice, "Plaintiff has suffered actual damages, including but not limited to all damages she could have recovered from wrongful death and medical negligence—i.e.: medical expenses, funeral expenses, pain and suffering, loss of services, protection, care and assistance, society, companionship, comfort and guidance, kindly offices and advice." Plaintiff sought compensatory and punitive damages.

Defendant filed an answer on 24 June 2004 and a motion to dismiss Plaintiff's complaint on 11 January 2006. The trial court entered an order dismissing Plaintiff's complaint on 10 February 2006. Plaintiff appeals.

The standard of review of an order granting a motion to dismiss pursuant to N.C. Gen.Stat. § 1A-1, Rule 12(b)(6) is "whether, as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief may be granted under some legal theory, whether properly labeled or not." Harris v. NCNB, 85 N.C.App. 669, 670, 355 S.E.2d 838, 840 (1987). "In ruling upon such a motion, the complaint is to be liberally construed, and the court should not dismiss the complaint `unless it appears beyond doubt that [the] plaintiff could prove no set of facts in support of his claim which would entitle him to relief.'" Holloman v. Harrelson, 149 N.C.App. 861, 864, 561 S.E.2d 351, 353 (quoting Dixon v. Stuart, 85 N.C.App. 338, 340, 354 S.E.2d 757, 758 (1987)), disc. review denied, 355 N.C. 748, 565 S.E.2d 665 (2002).

I.

Plaintiff argues the trial court erred by dismissing her claim for common law obstruction of justice. In In re Kivett, 309 N.C. 635, 309 S.E.2d 442 (1983), our Supreme Court recognized that obstruction of justice is a common law offense in North Carolina. Id. at 670, 309 S.E.2d at 462. "`At common law it is an offense to do any act which prevents, obstructs, impedes or hinders public or legal justice. The common law offense of obstructing public justice may take a variety of forms[.]'" Id. (quoting 67 C.J.S. Obstructing Justice §§ 1, 2 (1978)). The Supreme Court also recognized that Article 30 of Chapter 14 of the General Statutes, which sets forth specific crimes under the heading of Obstructing Justice, does not abrogate the common law offense of obstruction of justice. Id. Furthermore, "[t]here is no indication that the legislature intended Article 30 to encompass all aspects of obstruction of justice." Id.

Plaintiff argues, and we agree, that Henry v. Deen, 310 N.C. 75, 310 S.E.2d 326 (1984), is analogous to the present case. In Henry, the plaintiff was an administrator of a decedent's estate who sued two physicians and a physician's assistant for the wrongful death of the decedent and for civil conspiracy. Id. at 77, 310 S.E.2d at 328. The plaintiff alleged the following. The decedent experienced severe chest pain and other ailments and went to the emergency room around 30 June or 1 July 1979. Id. at 77, 310 S.E.2d at 329. The emergency room physician diagnosed the decedent with pneumonia and prescribed medicine for the decedent. Id. However, after reviewing an x-ray report that indicated possible serious cardiac deterioration, the emergency room physician instructed the decedent to see the defendant physician Deen. Id. at 78, 310 S.E.2d at 329. The decedent visited Deen's office on 3 July 1979. Deen and his physician's assistant, Hall, urged the decedent to continue taking medicine for pneumonia. Id.

The decedent returned for a follow-up visit on 6 July 1979 and Hall, without consulting Deen, told the decedent to continue taking the medicine for pneumonia. Id. The plaintiff alleged that the decedent "suffered from arteriosclerosis, coronary atheromatosis and coronary thrombosis, the combination of which, if undiagnosed and untreated, leads inevitably to the death of heart tissue and possible cardiac arrest." Id. at 78-79, 310 S.E.2d at 329. The plaintiff also alleged that the decedent's symptoms made a medical diagnosis of heart disease "compelling and obvious." Id. at 79, 310 S.E.2d at 329. The decedent died on 8 July 1979 of a massive myocardial infarction as a result of heart disease. Id.

With respect to the claim for civil conspiracy, the plaintiff in Henry specifically alleged that Deen and Hall agreed to create, and did create, false and misleading entries in the decedent's medical chart and that "the defendants obliterated another entry in the chart concerning the true facts of the diagnosis and treatment of [the decedent]." Id. at 87, 310 S.E.2d at 334. The plaintiff further alleged that Deen and Hall conspired with the defendant physician Niazi to conceal the decedent's actual medical record and to create a false medical record. Id. The plaintiff further alleged that Niazi agreed to produce the false document to anyone who inquired about Niazi's participation in the decedent's treatment. Id. The plaintiff sought actual damages for wrongful death, and punitive damages for wrongful death and civil conspiracy, from Deen and Hall. Id. at 79, 310 S.E.2d at 330. The plaintiff also sought punitive damages for civil conspiracy from Niazi. Id.

The defendants in Henry moved to dismiss the plaintiff's original complaint, and the plaintiff filed a motion to amend the complaint, along with a proposed amended complaint. Id. In the proposed amended complaint, the plaintiff alleged that Hall consulted with Niazi at the decedent's follow-up visit on 6 July 1979 and that, inter alia, Niazi attempted to diagnose and advise treatment for the decedent over the telephone. Id. at 79-80, 310 S.E.2d at 330. In the proposed amended complaint, the plaintiff also added a claim against Niazi for actual and punitive damages for wrongful death, and a claim against Deen, Hall and Niazi for actual damages as a result of the civil conspiracies. Id. at 80, 310 S.E.2d at 330.

The trial court dismissed the plaintiff's claims for civil conspiracy and for punitive damages for wrongful death against Deen, Hall, and Niazi. Id. The trial court also dismissed the wrongful death claim against Niazi and denied the plaintiff's ...