Henderson v. LeBauer

• Decision Date: 15 January 1991
• Docket Number: No. 9018SC332,9018SC332
• Citation: 399 S.E.2d 142,101 N.C.App. 255
• Court: North Carolina Court of Appeals
• Parties: Constance A. HENDERSON, Executrix of the Estate of Virgil E. Henderson, Plaintiff, v. E. Joseph LeBAUER, Bruce R. Brodie, Jeffrey Katz, Drs. LeBauer, Weintraub, Brodie, Patterson & Associates, P.A., David L. Rinehuls, Charles M. Hassell, and the Moses H. Cone Memorial Hospital, Defendants.

Page 142

399 S.E.2d 142

101 N.C.App. 255

Constance A. HENDERSON, Executrix of the Estate of Virgil E.

Henderson, Plaintiff, v. E. Joseph LeBAUER, Bruce R. Brodie, Jeffrey Katz, Drs.

LeBauer, Weintraub, Brodie, Patterson & Associates, P.A.,

David L. Rinehuls, Charles M. Hassell, and the Moses H. Cone

Memorial Hospital, Defendants.

No. 9018SC332.

Court of Appeals of North Carolina.

Jan. 15, 1991.

Hatfield, Mountcastle, Deal & Van Zandt by John P. Van Zandt, III, Winston-Salem, for plaintiff-appellant/cross-appellee.

Tuggle, Duggins, Meschan & Elrod, P.A. by Joseph E. Elrod, III and Robert A. Ford, Greensboro, for defendant-appellee Charles M. Hassell and defendant-appellee/cross-appellant Moses H. Cone Memorial Hospital.

Bell, Davis & Pitt, P.A. by William Kearns Davis and J. Dennis Bailey, Winston-Salem, for defendants-appellees E. Joseph LeBauer, Bruce R. Brodie, Jeffrey Katz, Drs. LeBauer, Weintraub, Brodie, Patterson & Associates, P.A., and David L. Rinehuls.

WELLS, Judge.

When a motion for summary judgment is granted, "the critical questions for determination upon appeal are whether on the basis of the materials presented to the trial court, there is a genuine issue as to any material fact and whether the movant is entitled to judgment as a matter of law." Oliver v. Roberts, 49 N.C.App. 311, 271 S.E.2d 399 (1980), cert. denied, 276 S.E.2d 283 (N.C.1981). Plaintiff claims that on the basis of the materials presented to the trial court, genuine issues of material fact remain regarding her allegations of conspiracy, the liability of defendant Hassell, and her claim for punitive damages. Defendant Hospital also assigns error to the denial of its motion for summary judgment on the issue of its alleged medical negligence. We affirm in part and reverse in part.

Defendants have correctly pointed out that there is no action for civil conspiracy recognized in North Carolina. In Johnson v. Beverly-Hanks & Associates, Inc., 97 N.C.App. 335, 388 S.E.2d 584, disc. review on additional issues denied, 326 N.C. 482, 392 S.E.2d 90 (1990), we noted the North Carolina rule:

[a]ccurately speaking, there is no such thing as a civil action for conspiracy. The action is for damages caused by acts committed pursuant to a formed conspiracy, rather than by the conspiracy itself; and unless something is actually done by one or more of the conspirators which results in damage, no civil action lies against anyone. The gist of the civil action for conspiracy is the act or acts committed in pursuance thereof--the damage--not the conspiracy or the combination. The combination may be of no consequence except as bearing upon rules of evidence or the persons liable. (Citations omitted).

Defendant is not seeking damages, however, arising out of the alleged conspiracy or combination. She is seeking damages arising out of acts she claims were committed pursuant to it--covering up and misrepresenting the cause of her husband's death. In Henry v. Deen, 310 N.C. 75, 310 S.E.2d 326 (1984), which also involved a wrongful death action and allegations of a cover-up, the Court held that actions taken pursuant to a conspiracy which tended to obstruct, impede or hinder public or legal justice were actionable.

A threshold requirement in any cause of action for damages caused by acts committed pursuant to a conspiracy must be the showing that a conspiracy in fact existed. The existence of a conspiracy requires proof of an agreement between two or more persons. Fox v. Wilson, 85 N.C.App. 292, 354 S.E.2d 737 (1987). Although civil liability for conspiracy may be established by circumstantial evidence, the evidence of the agreement must be sufficient to create more than a suspicion or conjecture in order to justify submission to a jury. Dickens v. Puryear, 302 N.C. 437, 276 S.E.2d 325 (1981).

Plaintiff has not forecast sufficient evidence that an agreement was reached between any of the defendants to perform the acts she complains of. She has pointed to a note on a copy of defendant Hassell's letter which contained his preliminary diagnoses which states "Joe--call me about this," various phone conversations, and a memo from Hassell to LeBauer stating "Joe: here is the 'uncorrected' copy of autopsy on Virgil Henderson. I will be mailing it to his wife, Mrs. Constance Henderson, in the next few days. Please contact me if you have a question or see an error." Plaintiff has also produced a great deal of circumstantial evidence which she claims points to a conspiracy, but we hold that this evidence does not reasonably lead to anything other than suspicion or conjecture that there was ever any underlying agreement. The trial court did not err in rendering judgment on this issue.

Plaintiff also assigns error to the entry of summary judgment as to all claims for punitive damages. Plaintiff's claims are grounded in her conspiracy claim and allegations of gross negligence against all defendants. As stated, we affirm the court's judgment that the offer of proof does not raise a jury question as to the existence of a conspiracy. Any issue of punitive damages, then, must arise out of gross negligence.

A personal representative may bring a claim in a wrongful death action for "[s]uch punitive damages as the decedent could have recovered had he survived, and punitive damages for wrongfully causing the death of the decedent through maliciousness, wilful or wanton injury, or gross negligence." N.C.Gen.Stat. § 28A-18-2 (1982). While there is authority which equates gross negligence with wanton conduct, see Bullins v. Schmidt, 322 N.C. 580, 369 S.E.2d 601 (1988), we cannot apply this definition in the context of this statute. "By providing for recovery of punitive damages upon a showing of 'maliciousness, wilful or wanton injury, or gross negligence' it appears that the General Assembly intended to establish three separate categories of conduct which would afford a recovery." Cole v. Duke Power Co., 81 N.C.App. 213, 344 S.E.2d 130, disc. review denied, 318 N.C. 281, 347 S.E.2d 462 (1986). N.C.Gen.Stat. § 28A-18-2 allows recovery of punitive damages in wrongful death actions involving gross negligence even when no wilful or wanton conduct was involved. Id. To establish gross negligence, the plaintiff must show negligence of an aggravated character. Id.

In a medical malpractice action, generally there must be expert testimony that tends to show a deviation from the normal standard of care. Assaad v. Thomas, 87 N.C.App. 276, 360 S.E.2d 503 (1987), disc. review denied, 321 N.C. 471, 364 S.E.2d 917, reh'g denied, 321 N.C. 747, 366 S.E.2d 856 (1988). Plaintiff's offer of proof included affidavits and depositions from many medical experts. Dr. Thomas A. Preston stated in his affidavit that:

The attending clinicians were negligent in not noting the severity of anemia, and treating it properly. Not only did the anemia go untreated, but the patient had a history of a GI bleed in 1982, which would make any finding of anemia all the more urgent. The patient was never treated with packed red blood cells, despite a diagnosis of anemia and grossly insufficient treatment of ferrous sulfate. In summary, there was negligence in not recognizing the...