Leonard v. Bell

• Decision Date: 04 August 2020
• Docket Number: No. COA19-742,COA19-742
• Citation: 847 S.E.2d 58
• Parties: Martin LEONARD, Plaintiff, v. Ronald BELL, M.D., Individually, Phillip Stover, M.D., Individually, Defendants.
• Court: North Carolina Court of Appeals

847 S.E.2d 58

Martin LEONARD, Plaintiff,

v.Ronald BELL, M.D., Individually, Phillip Stover, M.D., Individually, Defendants.

No. COA19-742

Court of Appeals of North Carolina.

Filed: August 4, 2020

Knott & Boyle, PLLC, by Ben Van Steinburgh, Raleigh, and W. Ellis Boyle, for plaintiff-appellant.

Hedrick Gardner Kincheloe & Garofalo, LLP, Charlotte, by M. Duane Jones and Luke P. Sbarra, for defendant-appellee Bell.

Attorney General Joshua H. Stein, by Assistant Attorney General Kenzie M. Rakes, for defendant-appellee Stover.

STROUD, Judge.

Martin Leonard ("Plaintiff") appeals from an order granting Ronald Bell, M.D.’s and Phillip Stover, M.D.’s (collectively "Defendants") motions to dismiss Plaintiff's complaint with prejudice. Viewing the record "in the light most favorable to plaintiff," Preston v. Movahed , 374 N.C. 177, 840 S.E.2d 174, 190 (2020), because Plaintiff's medical expert reviewed all the medical records pertaining to the alleged negligence available to Plaintiff after reasonable inquiry prior to filing his complaint, we conclude at the time of the filing of the complaint, Plaintiff had complied with the requirements of North Carolina General Statute § 1A-1, Rule 9(j). The production by Defendants’ employer, the North Carolina Department of Public Safety, Division of Adult Corrections ("DAC"), of additional records regarding Plaintiff's medical care four years after the filing of the complaint does not defeat Plaintiff's complaint under Rule 9(j), particularly where the records produced were responsive to Plaintiff's first request for records in 2013 but were not produced until years later. We therefore reverse the trial court's order dismissing Plaintiff's complaint and remand for further proceedings.

I. Procedural and Factual Background

This case was appealed to this Court previously. Leonard v. Bell , 254 N.C. App. 694, 803 S.E.2d 445 (2017). Defendants appealed the trial court's denial of their motion to dismiss based upon public official immunity, and this Court affirmed. This Court set out the background of this case as follows:

Martin Leonard ("plaintiff") initiated this case against defendants in their individual capacities with the filing of summonses and a complaint on 5 May 2016. In the complaint, plaintiff asserts negligence claims against Dr. Bell and Dr. Stover, both physicians employed by the Department of Public Safety ("DAC"), albeit in different capacities. Those claims are based on allegations that Dr. Bell and Dr. Stover failed to meet the requisite standard of care for physicians while treating plaintiff, who at all relevant times was incarcerated in the Division of Adult Correction (the "DAC").

Specifically, plaintiff alleges that he began experiencing severe back pain in late October 2012 and submitted the first of many requests for medical care. Over the next ten months, plaintiff was repeatedly evaluated in the DAC system by nurses, physician assistants, and Dr. Bell in response to plaintiff's complaints of increasing back pain and other attendant symptoms. Dr. Bell personally evaluated plaintiff nine times and, at the time of the seventh evaluation in June 2013, submitted a request for an MRI to the Utilization Review Board (the "Review Board"). Dr. Stover, a member of the Review Board, denied Dr. Bell's request for an MRI and instead recommended four weeks of physical therapy. Plaintiff continued to submit requests for medical care as his condition worsened. Upon further evaluations by a nurse and a physician assistant in August 2013, the physician assistant sent plaintiff to Columbus Regional Health Emergency Department for treatment. Physicians at Columbus Regional performed an x-ray and an MRI. Those tests revealed plaintiff was suffering from an erosion of bone in the L4 and L3 vertebra and a spinal infection. Plaintiff asserts Dr. Bell's failure to adequately evaluate and treat his condition, and Dr. Stover's refusal of requested treatment, amounts to medical malpractice.

Id. at 695–96, 803 S.E.2d at 447.

Prior to filing the complaint, Plaintiff requested all his medical records from many medical providers and provided these to Dr. Parker McConville to review. On 27 November 2013, Plaintiff made his first request for medical records to DAC and requested "[a]ll medical records, declarations of medical emergencies, sick call filings, and grievances" from "January 1, 2012-Present." Dr. McConville initially reviewed the medical records in April 2014 and then received additional records in April 2016. He reviewed medical and imaging records from UNC Health Care, Rex Healthcare, Columbus Regional Healthcare, FirstHealth Moore Regional Hospital, Southeastern Regional, Southeastern Health, Wilmington Health Associates, New Hanover Regional Hospital, and DAC. Thus, Plaintiff's initial request for medical records extended back ten months prior to plaintiff's first visit to Defendant Bell. Plaintiff received 512 pages of medical records in response to his initial request, and Dr. McConville reviewed all these records before Plaintiff filed his complaint.

On 5 May 2016, Plaintiff filed the medical malpractice complaint, with the Rule 9(j) certification based upon Dr. McConville's review of all the medical records noted above. On or about 14 October 2016, Plaintiff served his First Request for Production upon Dr. Bell and requested

[a]ll medical records of any sort in your possession, regarding any health care provider's medical treatment or care of Martin Leonard, including but not limited to: duty log or schedule of when you were on call or physically present at the Prison in 2012 and 2013; all medical billing statements, medical charts, physician's office records, correspondence to or from any person, entity or organization; all hospital or medical records regularly maintained concerning patients such as physicians’ notes, nurse or staffing logs, nursing administration reports, incident/occurrence report forms, shift records, psychiatry flow sheets, patient data logs, medication administration logs, physical/occupational therapy notes, nursing notes, and handwritten notes; all orders requesting any laboratory study or test or imaging; all laboratory reports; all radiological images in electronic format and corresponding reports to include MRIs, CT Scans

, and photographs; all medication and prescription records; all surgical and pathology reports; all medical reports furnished routinely or specially to any person, organization, or entity including the patient, any representative of the patient, or any insurance company; and any record of any conversations, correspondence, or emails with any pathologists or other employee or agent of North Carolina Department of Public Safety.

Dr. Bell responded, "The only medical records related to Plaintiff that are in Dr. Bell's possession were produced by Plaintiff's counsel in connection with the pending Industrial Commission matter related to Plaintiff's claims."¹

On 17 October 2016, Plaintiff served his First Request for Production of documents on Dr. Stover, requesting the same information as the request to Dr. Bell. On 20 September 2017, Dr. Stover responded as follows:

Objection: This request is overly broad, unduly burdensome and not relevant to this matter. Seeks information not reasonably calculated to lead to the discovery of admissible [sic]. This request seeks matters and/or documents protected by the work product doctrine and/or attorney client privilege. As discovery proceeds in this case, Defendant will supplement this response to the extent appropriate under the North Carolina Rule of Civil Procedure.

(Alteration in original.)

Defendants then filed motions to dismiss "pursuant to Rule 12(b)(1), (2), and (6)" addressed in their first appeal. Leonard v. Bell , 254 N.C. App. at 696, 803 S.E.2d at 447. The trial court denied the motions on 25 October 2016 and both defendants appealed. Id. This Court's opinion in the prior appeal was filed in August 2017, and, upon remand, discovery resumed.

On or about 11 April 2018, Plaintiff served a subpoena upon DAC requesting production of his medical records. Our record does not reveal if DAC itself responded directly to the subpoena, but soon after the subpoena, Dr. Stover supplemented his September 2017 discovery responses.² On 19 June 2018, Dr. Stover sent a supplemental document production to Plaintiff including 1172 pages of prison and medical records. Of these documents, 354 pages were some of the same medical records produced in December 2013 by DAC in response to Plaintiff's request prior to filing the complaint, but Dr. Stover provided an additional 818 pages of records from DAC. In their arguments before the trial court and this Court, Defendants stressed one of these 818 pages of documents included in the new information was a sheet recording Plaintiff's TB skin tests over several years.³ This document, a "North Carolina Department of Correction Immunization Record/T.B. Skin Test" form, ("TB skin test form") included entries from 13 July 2011, 29 July 2012, and 2 July 2013. TB skin test records from July 2011, July 2012, and July 2013 were included on this sheet, along with prior years back to 2006. For each year from 2010 until 2013, the sheet also recorded whether Plaintiff was having symptoms of unexplained productive cough

, unexplained weight loss, unexplained appetite loss, unexplained fever, night sweats, shortness of breath, chest pain, and increased fatigue. For 2010, this screening noted "yes" for night sweats, chest pain, and increased fatigue. For 2011, each symptom is marked "no." For 29 July 2012, every symptom is marked "no." For 2013, again, every symptom is marked "no."⁴ This record of TB skin tests and symptoms was in Plaintiff's DAC medical file as of 1 January 2012 and should have been provided in response to Plaintiff's initial request for records to DAC prior to filing of the complaint, based upon the starting date of Plaintiff's request for records from January 2012...