Miller v. Carolina Coast Emergency Physicians, LLC

• Decision Date: 18 May 2021
• Docket Number: No. COA COA20-399,COA COA20-399
• Citation: 860 S.E.2d 238
• Court: North Carolina Court of Appeals
• Parties: Charlotte Pope MILLER, Administratrix of the Estate of the Late John Larry Miller, Plaintiff v. CAROLINA COAST EMERGENCY PHYSICIANS, LLC, Harnett Health System, Inc. d/b/a Betsy Johnson Regional Hospital, and Dr. Ahmad S. Rana, Defendants

860 S.E.2d 238

Charlotte Pope MILLER, Administratrix of the Estate of the Late John Larry Miller, Plaintiff

v.CAROLINA COAST EMERGENCY PHYSICIANS, LLC, Harnett Health System, Inc. d/b/a Betsy Johnson Regional Hospital, and Dr. Ahmad S. Rana, Defendants

No. COA COA20-399

Court of Appeals of North Carolina.

Filed May 18, 2021

Brent Adams & Associates, by Brenton D. Adams, and Hedrick, Gardner, Kincheloe, and Garofalo, LLP, Raleigh, by Patricia P. Shields, for plaintiff-appellant.

Walker, Allen, Grice, Ammons, Foy & Klick, LLC, by Louis F. Foy III and Alicia R. Johnson, for defendants-appellees Dr. Ahmad Rana and Carolina Coast Emergency Physicians.

Yates, McLamb, & Weyher, L.L.P., by Maria P. Wood, Raleigh, and Kristina M. Wilson, for defendant-appellee Harnett Health System, Inc.

HAMPSON, Judge.

Factual and Procedural Background

¶ 1 Charlotte Pope Miller¹ (Plaintiff) appeals from Orders granting Defendants Dr. Ahmad Rana and Carolina Coast Emergency Physicians, LLC (collectively Dr. Rana) and Harnett Health System, Inc. d/b/a Betsy Johnson Regional Hospital (Harnett Health) (collectively Defendants) Summary Judgment after granting Defendants’ Motions to Dismiss and to Exclude Plaintiff's expert witnesses in Plaintiff's medical malpractice suit. Defendants cross-appeal the trial court's Orders denying their earlier Motions to Discontinue and to Dismiss Plaintiff's suit. The Record before us reflects the following:

¶ 2 Plaintiff is the Administrator of the estate of her late husband, John Larry Miller (Decedent). On 30 September 2011, Plaintiff filed a medical malpractice Complaint in Harnett County Superior Court against Defendants claiming Decedent died in Defendants’ care and as a result of their negligence (the 2011 Complaint). The 2011 Complaint alleged Decedent died after two trips to Harnett Health's emergency room on 8 and 9 March 2010. On 8 February 2013, Plaintiff voluntarily dismissed the 2011 Complaint without prejudice.

¶ 3 On 6 February 2014, Plaintiff filed another Complaint (the 2014 Complaint) in Harnett County Superior Court alleging Decedent died while in Defendants’ care and as a result of Defendants’ negligence. In the 2014 Complaint, Plaintiff alleged Decedent—at the time, a sixty-three-year-old man—complained of not being able to urinate on 5 March 2010. After three days of not being able to urinate, Decedent was transported by ambulance to Harnett Health's emergency room on 8 March 2010. Upon arriving at Harnett Health's emergency room, Dr. Ahmad Rana—then employed by Carolina Coast Emergency Physicians, LLC—assumed Decedent's care. Decedent complained of pain, and Dr. Rana's notes indicated Decedent's abdomen was distended and hard. Dr. Rana was aware of Decedent's pre-existing conditions including prior renal failure, diabetes, and urinary tract infections.

¶ 4 On 8 March 2010, Dr. Rana ordered the placement of a catheter and a urinalysis and urine culture. Because the urinalysis showed potential infection, Dr. Rana prescribed Decedent antibiotics and discharged Decedent with the catheter in place.

¶ 5 On 9 March 2010, Decedent returned to Harnett Health's emergency room complaining of continued pain and inability to urinate. Dr. Rana again assumed Decedent's care. Dr. Rana ordered blood work for Decedent, and those results showed high serum potassium and creatinine levels consistent with renal failure, especially given Decedent's history of renal failure. Because of these lab results, Dr. Rana ordered Decedent be given 30 grams Kayexalate. Nursing notes indicate Plaintiff gave Decedent the thirty grams of Kayexalate at 23:25 on 9 March 2010. These notes also indicate "gurgling after administration" and that Decedent's mouth was suctioned. The notes state Decedent's oxygen saturation level fell, and a respiratory therapist was called to suction Decedent's mouth. At 23:30, Decedent vomited a "bright orange" substance and became unresponsive; nurses alerted Dr. Rana. The respiratory therapist suctioned 100 ml of "bright orange secretions" from Decedent. Decedent was moved to another room where Dr. Rana and others attempted to resuscitate Decedent. When asked by the respiratory therapist whether Plaintiff wanted medical personnel to continue resuscitative efforts, Plaintiff declined. Decedent passed away at, or shortly after, midnight.

¶ 6 Plaintiff made notes of the events beginning on 8 March 2010 leading up to Decedent's death. Plaintiff's handwritten notes included an account describing a nurse trying to give Decedent "a swallow" of the Kayexalate. Plaintiff asked Decedent to "take a sip" and Decedent did. Decedent then started coughing and the nurse tried to suction Decedent to no avail. Plaintiff tried to assist the nurse in suctioning. The notes go on to describe the rest of the events leading to Decedent's death. Plaintiff did not find her handwritten notes until 2018 and the notes were not provided to her expert witnesses.

¶ 7 The 2014 Complaint included a " Rule 9(j)" certification, pursuant to N.C. Gen. Stat. § 1A-1, Rule 9(j), stating Decedent's medical care and medical records had been "reviewed by a person who is reasonably expected to qualify as an expert witness ... and who is willing to testify that" Defendants’ care breached the applicable standard of care and caused Decedent's death. In subsequent responses to discovery requests by Defendants, Plaintiff identified Dr. Robert E. Leyrer as the expert referenced in the 2014 Complaint. Dr. Leyrer was employed as an emergency physician in Florida at that time.

Prior to filing the 2011 Complaint, Plaintiff had retained Dr. Leyrer to review Decedent's records and provide a preliminary opinion regarding Plaintiff's case. In response to discovery requests, Plaintiff also produced an affidavit provided by Dr. Leyrer stating he had reviewed medical records, including records from Decedent's 8 and 9 March visits to Harnett Health's emergency room and that "the defendants" violated the standard of care as alleged in Plaintiff's 2011 Complaint; Dr. Leyrer incorporated the 2011 Complaint by reference. Dr. Leyrer also stated he was willing to testify "about the violation of the standard by the defendants[.]"

¶ 8 In 2015, after Plaintiff filed the 2014 Complaint, Dr. Leyrer provided deposition testimony regarding his opinions as to Defendants’ alleged negligence. Specifically, as to Harnett Health, Dr. Leyrer testified he was not offering criticisms specific to Harnett Health and did not consider himself an expert in emergency nursing. Dr. Leyrer stated he did not have any opinions as to whether Harnett Health breached the standard of care. The Record does not indicate Dr. Leyrer made these facts known to Plaintiff prior to Plaintiff filing her 2014 Complaint.

¶ 9 On 13 March 2014, Dr. Rana filed an Answer to Plaintiff's 2014 Complaint. This Answer did not assert any defenses of insufficient process, insufficient service of process, or lack of personal jurisdiction. The Answer did assert Plaintiff had not paid Defendants’ costs after voluntarily dismissing the 2011 Complaint, pursuant to Rule 41(d) of the North Carolina Rules of Civil Procedure (Rule 41(d)). Dr. Rana subsequently filed a Motion to Tax Costs, pursuant to Rule 41(d) on 20 March 2014. Shortly after Dr. Rana filed the Motion to Tax Costs, the parties conferred and agreed on an amount which Plaintiff paid—the trial court never heard Dr. Rana's Motion to Tax Costs.

¶ 10 On 4 April 2014, Dr. Rana filed an Amended Answer as of right that included Motions to Dismiss raising the defenses of insufficient process, insufficient service of process, lack of personal jurisdiction, and the statute of limitations. The trial court heard arguments on Dr. Rana's Motions to Dismiss on 12 December 2016. On 17 January 2017, the trial court entered an Order denying Dr. Rana's Motions concluding the previously filed Motion to Tax Costs was a general appearance in the suit conferring personal jurisdiction to the trial court over Dr. Rana and that Dr. Rana's process, service of process, and personal jurisdiction defenses in his Amended Answer did not relate back to his original Answer, and were, thus, waived.

¶ 11 Dr. Rana filed written Notice of Appeal from the trial court's Order denying his Motions to Dismiss to this Court on 10 February 2017. We granted Plaintiff's Motion to Dismiss the Appeal on 28 September 2017.

¶ 12 On 18 July 2014, Harnett Health filed its Answer. On 6 October 2015, Harnett Health filed a Motion to Dismiss pursuant to Rule 9(j) because Dr. Leyrer testified in his deposition that he had no opinion as to whether Harnett Health breached the standard of care and that he did not consider himself an emergency nursing expert. On 9 November 2015, the trial court entered an Order denying Harnett Health's Rule 9(j) Motion to Dismiss concluding Plaintiff's Complaint facially complied with Rule 9(j), and Plaintiff "exercised reasonable care and diligence" in assuring her Rule 9(j) certification was true and that Plaintiff reasonably expected Dr. Leyrer to qualify and testify as an expert witness against Harnett Health.

¶ 13 On 2 March 2015, Plaintiff filed her Designation of Expert Witnesses. Plaintiff designated Dr. Leyrer, pursuant to her Rule 9(j) certification, as well as Dr. Gary B. Harris. Plaintiff anticipated Dr. Harris, as a practicing emergency room physician and after reviewing the various medical records, would testify Defendants had breached the applicable standard of care and Defendants’ breaches caused Decedent's death.

¶ 14 On 1 March 2019, Dr. Rana filed Motions to Exclude both Dr. Leyrer and Dr. Harris as expert witnesses, a Rule 9(j) Motion to Dismiss, and a Motion for Summary Judgment. The same day, Harnett Health filed a Motion to Disqualify and Exclude Plaintiff's Expert Witnesses and Motion for Summary Judgment. The trial court heard arguments on Defendants’ Motions on 1 April 2019.

¶ 15 The trial court granted Dr. Rana's Rule 9(j) Motion to Dismiss on 4 October 2019 finding:

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