Parkes v. Hermann

• Decision Date: 18 December 2020
• Docket Number: No. 241PA19,241PA19
• Citation: 852 S.E.2d 322,376 N.C. 320
• Parties: Anita Kathleen PARKES v. James Howard HERMANN
• Court: North Carolina Supreme Court

376 N.C. 320

852 S.E.2d 322

Anita Kathleen PARKES

v.James Howard HERMANN

No. 241PA19

Supreme Court of North Carolina.

Filed December 18, 2020

Melrose Law, PLLC, by Mark R. Melrose, Asheville, and Adam R. Melrose, for plaintiff-appellant.

Roberts & Stevens, P.A., by Phillip T. Jackson, Asheville, David C. Hawisher, and Elizabeth Dechant, for defendant-appellee.

D. Hardison Wood, Cary, and Charles Monnett III, Charlotte, for North Carolina Advocates for Justice, amicus curiae.

John H. Beyer, and Katherine H. Graham, Charlotte, for North Carolina Association of Defense Attorneys, amicus curiae.

Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, LLP, Raleigh by Christopher G. Smith, for North Carolina Chamber Legal Institute, amicus curiae.

Linwood Jones, Raleigh, for North Carolina Healthcare Association, amicus curiae.

Norman F. Klick Jr., Jerry A. Allen, Goldsboro, and Jocelyne Riehl, for North Carolina Medical Society and North Carolina College of Emergency Physicians, amici curiae.

NEWBY, Justice.

In this case we are asked to change our existing jurisprudence regarding proximate causation and to establish a new cause of action, "loss of chance." We decline to make these significant changes because they are best left to the legislative branch. Specifically, this case is about whether a patient who experienced a stroke failed to show, more likely than not, that the physician's negligence caused her diminished neurological function. Further, this case raises the question of whether the patient's "loss of chance" at a better outcome following her stroke is a separate type of injury for which she could recover in medical malpractice action. Plaintiff concedes that she failed to show that it was more likely than not that defendant's negligence caused her diminished neurological function. Nonetheless, plaintiff argues her claims should stand because defendant's negligence diminished her likelihood of full recovery, thus proximately causing her injury. Further, plaintiff argues that her "loss-of-chance" claim is a separate claim. We now affirm the decision of the Court of Appeals, which affirmed the trial court's decision to grant summary judgment to defendant.

Because the trial court granted summary judgment, we review the facts in the light most favorable to plaintiff, the nonmoving party. As alleged in plaintiff's complaint, at approximately 12:15 a.m. on or about 24 August 2014, plaintiff told her husband she thought she might be having a stroke as "her left arm and left leg felt heavy and weak and ... her tongue felt thick and her speech was slurred." Her family rushed her to the nearby hospital. By approximately 1:35 a.m. plaintiff was in triage at the hospital complaining of slurred speech and numbness in her left arm, symptoms that had started about one hour earlier. Plaintiff received a CT scan of her head at approximately 1:35 a.m., and those results were available soon after. At approximately 3:00 a.m. defendant contacted plaintiff's primary care physician, Dr. Wheeler, and erroneously communicated that plaintiff "had no neurological deficits." Plaintiff's same symptoms continued and at about 6:00 a.m. the hospital staff noted that plaintiff "had left facial droop, left arm drift and slightly slurred speech." At approximately 7:15 a.m. Dr. Wheeler arrived at the hospital, noted plaintiff's neurological signs and symptoms, ordered a neurological consult, and admitted plaintiff to the hospital. After the neurological consult, Dr. Wheeler spoke with the neurologist who advised her that plaintiff's opportunity to benefit from certain time-sensitive treatment, namely administering alteplase, a tissue plasminogen activator ("tPA"), had passed.

In her complaint, plaintiff alleged that, "[d]ue to the delay in diagnosis, the Plaintiff has suffered additional harms, damages and losses, including permanent injuries, and including additional medical expenses for which the Defendant is liable." Plaintiff claimed defendant "was negligent and failed to use reasonable care and diligence" to timely diagnose plaintiff's stroke using the methods and techniques available, assess and reassess plaintiff's conditions which demonstrated the signs of an ongoing stroke, and timely treat plaintiff with tPA. Plaintiff alleged that her injury was "a direct and proximate result" of defendant's negligence and, "[h]ad timely and appropriate medical care been provided to the Plaintiff, then her ultimate medical outcome would have had an increased opportunity for an improved neurological outcome." This secondary claim, that plaintiff lost an increased opportunity for an improved neurological outcome by defendant's failure to timely treat her with tPA, is referred to as plaintiff's loss-of-chance claim.

Defendant moved for summary judgment, arguing that the stroke caused plaintiff's injuries, not defendant's failure to treat plaintiff with tPA, and that plaintiff's loss-of-chance claim is not a recognized claim in North Carolina. The trial court, having reviewed the pleadings, depositions, and memoranda of law submitted by both parties, granted summary judgment in favor of defendant.

On appeal, a unanimous panel of the Court of Appeals acknowledged that plaintiff's injury was proximately caused by the stroke and not by defendant's negligence. Parkes v. Hermann , 265 N.C. App. 475, 477, 828 S.E.2d 575, 577 (2019). The evidence in the light most favorable to plaintiff only showed a 40% chance that defendant's negligence caused plaintiff's injury. In other words, there was only a 40% chance that plaintiff's condition would have improved if defendant had properly diagnosed plaintiff and timely administered tPA. Id. By presenting evidence of only a 40% chance, plaintiff failed to show it was more likely than not that defendant's negligence caused plaintiff's current condition. Id.

Plaintiff also claimed that the loss of the 40% chance itself was a cognizable and separate type of injury—her loss of chance at having a better neurological outcome—that warranted recovery. Id. at 478, 828 S.E.2d at 577–78. The Court of Appeals discussed that a plaintiff cannot recover for a loss of less than a 50% chance under "the ‘traditional’ approach" applied to loss-of-chance claims in other jurisdictions, but a plaintiff may recover the full value of a healthier outcome if he or she can show that, more likely than not, the outcome could have been achieved absent the defendant's negligence. Id. at 478, 828 S.E.2d at 578 (citing Valadez v. Newstart, LLC , No. W2007-01550-COA-R3-CV, 2008 WL 4831306, at *4 (Tenn. Ct. App. Nov. 7, 2008) ). Here plaintiff's loss was at best a 40% chance; thus, plaintiff could not recover under this traditional approach.

Regardless, relying in part on this Court's precedent in Gower v. Davidian , 212 N.C. 172, 193 S.E. 28 (1937), the Court of Appeals stated that this Court had not adopted "loss of chance" as a separate cause of action, Parkes , 265 N.C. App. at 478, 828 S.E.2d at 578, and concluded that "any change in our negligence law lies ‘within the purview of the legislature and not the courts,’ " id. at 478–79, 828 S.E.2d at 578 (quoting Curl v. Am. Multimedia, Inc. , 187 N.C. App. 649, 656–57, 654 S.E.2d 76, 81 (2007) ). Thus, the Court of Appeals affirmed the trial court's order granting summary judgment in favor of defendant. Id. at 479, 828 S.E.2d at 578.

Summary judgment is proper if "there is no genuine issue as to any material fact and ... any party is entitled to a judgment as a matter of law." N.C.G.S. § 1A-1, Rule 56(c) (2019). "The movant is entitled to summary judgment ... when only a question of law arises based on undisputed facts." Ussery v. Branch Banking & Tr. Co. , 368 N.C. 325, 334, 777 S.E.2d 272, 278 (2015) (citation omitted). "All facts asserted by the [nonmoving] party are taken as true [and] ... viewed in the light most favorable to that party." Dobson v. Harris , 352 N.C. 77, 83, 530 S.E.2d 829, 835 (2000). "This Court reviews appeals from summary judgment de novo." Ussery , 368 N.C. at 334–35, 777 S.E.2d at 278 (citation omitted).

Here plaintiff's filings and discovery showed that for tPA to be possibly beneficial, it must be administered within three hours of the onset of a certain kind of stroke. A medical study reviewed by plaintiff's expert showed that stroke patients who receive placebo treatment, or in other words are not treated with tPA, have roughly a 20% to 26% chance of a good neurological outcome, such as a full or nearly full recovery. Those patients who receive the treatment add an additional thirteen percentage points to their chance of recovery, resulting in a 39% total chance of a good neurological outcome. Based on the expert's testimony, with the treatment also comes a certain degree of risk, dependent on the patient, with a 6.4% risk of doing harm. According to plaintiff's expert, plaintiff "had an opportunity for [a] maximum benefit of 35 [percent]—well, according to the trial, I say about 30 to 35, the trial is up to 39 percent, but yes, under 40 percent."¹ Plaintiff claims that these percentages represent the lost chance of an increased opportunity for an improved neurological outcome had tPA been administered in time and constitute a compensable injury separate from traditional negligence.

As determined by the Court of Appeals, neither the additional thirteen percentage points, the 30% to 35% total chance, nor the 40% total chance of an improved neurological outcome meets the "more likely than not," or greater than a 50% chance, threshold for proximate cause in a traditional medical malpractice claim. But, plaintiff argues that the loss-of-chance claim is appropriate when a plaintiff cannot meet the greater than a 50% threshold, thereby allowing a plaintiff to present a loss-of-chance claim to the jury when a traditional negligence claim may not survive summary judgment. Plaintiff advocates for lowering the proximate cause standard for cases like this one because the loss of chance...