Thornton v. F.J. Cherry Hosp.

• Decision Date: 15 May 2007
• Docket Number: No. COA06-1096.,COA06-1096.
• Parties: Eric THORNTON, Plaintiff, v. F.J. CHERRY HOSPITAL and North Carolina Department of Health and Human Services, Self-Insured (Key Risk Management, Servicing Agent), Defendants.
• Court: North Carolina Court of Appeals

644 S.E.2d 369

Eric THORNTON, Plaintiff, v. F.J. CHERRY HOSPITAL and North Carolina Department of Health and Human Services, Self-Insured (Key Risk Management, Servicing Agent), Defendants.

No. COA06-1096.

Court of Appeals of North Carolina.

May 15, 2007.

Appeal by plaintiff from opinion and award entered 8 May 2006 by Commissioner Christopher Scott for the North Carolina Industrial Commission. Heard in the Court of Appeals 21 March 2007.

Narron & Holdford, P.A., by Ben L. Eagles, Wilson, for plaintiff-appellant.

Attorney General Roy Cooper, by Special Deputy Attorney General Amar Majmundar and Assistant Attorney General Laura J. Gendy, for defendants-appellees.

TYSON, Judge.

Eric Thornton ("plaintiff") appeals from the opinion and award entered by the Full Commission of the North Carolina Industrial Commission ("the Commission") denying his claim under the Tort Claims Act. We affirm.

I. Background

On 16 May 2000, plaintiff was involuntarily committed to F.J. Cherry Hospital ("Hospital") after he inflicted multiple lacerations upon himself with a box cutter. Plaintiff's treatment records indicate he cut himself approximately twenty times about the head, chest, and legs in order to obtain a narcotic painkiller. That day, plaintiff also attempted to persuade Hospital Staff Member Ruth Maye, RN, ("Maye") that he had broken his right leg and needed narcotics for pain. No evidence suggested plaintiff's right leg was broken, and Maye did not provide any narcotics to plaintiff. Plaintiff also contacted his family and complained the Hospital would not provide him with narcotics and suggested he might run his head through glass in order to obtain narcotics. Hospital staff informed plaintiff they would not provide him narcotics.

On 17 May 2000, plaintiff continued to seek narcotics from Hospital staff. Plaintiff became irate, attempted to throw a wheelchair, and threatened to sue the Hospital for "poor health care." Plaintiff also told a nurse that his left knee was broken and that he needed narcotics. No evidence suggested plaintiff's left knee was broken. At approximately 3:15 p.m. that day, plaintiff and another patient engaged in a verbal confrontation. Hospital staff separated plaintiff and the patient pursuant to Hospital procedures. At approximately 4:00 p.m., a Hospital employee conducted a routine ward check. He observed plaintiff was awake and seated in the TV room.

At approximately 4:18 p.m., plaintiff became involved in an alleged physical altercation with other patients in the TV room. Plaintiff alleged an assailant struck him in the head while he was asleep in the TV room, and he fell out of his wheelchair. Plaintiff alleged the "whole ward" then "jumped" on him and an assailant stomped on his left leg, causing a fracture to his left tibia. Plaintiff changed his allegations before the Deputy Commissioner and stated he: (1) was struck in the head; (2) stood up to fight the assailants; (3) threw one assailant into the television; (4) threw a second assailant into a book shelf; and (5) continued to stand and fight as another assailant approached him from the side and kicked him in the left shin. Plaintiff testified no Hospital staff members were present in the ward, that all were on "break." Plaintiff presented no witnesses of the alleged attack.

At approximately 4:18 p.m., Hospital Staff Member Erthel Anderson ("Anderson") was located approximately ten to fifteen feet and Hospital Staff Member Ken Marsh was approximately twenty-five to thirty feet from the alleged altercation. Hospital Staff Member Rico Raynor was located approximately thirty to thirty-five feet away and Hospital Staff Member Nate Phillips was located approximately forty to fifty feet away. Plaintiff presented for treatment and was diagnosed with a broken left tibia.

On 15 May 2002, plaintiff filed a claim for damages under the North Carolina Tort Claims Act against the Hospital and the North Carolina Department of Health and Human Services (collectively, "defendants"). Plaintiff alleged the physicians, nurses, and medical providers of the Hospital deviated from the standard of medical care for his treatment and their deviation proximately caused his injury. The Deputy Commissioner denied plaintiff's claim. Plaintiff appealed to the Full Commission, which affirmed the Deputy Commissioner's denial of his claim. Plaintiff appeals.

II. Issues

Plaintiff argues the Commission erred when it: (1) entered finding of fact numbered 8; (2) entered conclusions of law numbered 4, 5, 6, and 7; and (3) denied his claim under the Tort Claims Act.

III. Standard of Review

The standard of review under the Tort Claims Act is well settled. "[W]hen considering an appeal from the Commission, our Court is limited to two questions: (1) whether competent evidence exists to support the Commission's findings of fact, and (2) whether the Commission's findings of fact justify its conclusions of law and decision." Simmons v. N.C. Dept. of Transportation, 128 N.C.App. 402, 405-06, 496 S.E.2d 790, 793 (1998). "[C]onclusions of law are reviewable de novo on appeal." Starco, Inc. v. AMG Bonding and Ins. Services, 124 N.C.App. 332, 336, 477 S.E.2d 211, 215 (1996).

IV. Finding of Fact Numbered 8

Plaintiff argues the Commission erred when it found that the patients did not physically confront one another, physical threats were not made, and Anderson's actions comported with all Hospital procedures. Finding of fact numbered 8 states:

8. At approximately 3:15 p.m. on May 17, 2000, Erthel Anderson, a Cherry Hospital staff member, observed the plaintiff and another patient in a verbal confrontation regarding cigarette smoking. Pursuant to Cherry Hospital procedure, Anderson separated the arguing patients, spoke to them individually, observed that the patients had settled and resolved the issue, and allowed the patients to proceed with their respective activities. At no time did the patients physically confront one another, nor were physical threats made between the patients. The Full Commission finds that Anderson's actions comported with all Cherry Hospital procedures.

"The Industrial Commission's findings of fact are conclusive on appeal when supported by competent evidence . . . . even though there is evidence which would support findings to the contrary." Bailey v. Dep't of Mental Health, 272 N.C. 680, 683-84, 159 S.E.2d 28, 30-31 (1968). On appeal, this Court "does not . . . weigh the evidence [or] decide the issue on the basis of its weight. The Court's duty goes no further than to determine whether the record contains any evidence tending to support the finding." Anderson v. Lincoln Construction Co., 265 N.C. 431, 434, 144 S.E.2d 272, 274 (1965).

Questions of credibility and weight remain the province of the Commission, which may accept or reject all the testimony of a witness. Lineback v. Wake County Board of Commissioners, 126 N.C.App. 678, 680, 486 S.E.2d 252, 254 (1997). The Commission is "the sole judge of the credibility of the witnesses and the weight to be given their testimony." Melton v. City of Rocky Mount, 118 N.C.App. 249, 256, 454 S.E.2d 704, 709, disc. rev. denied, 340 N.C. 568, 460 S.E.2d 319 (1995).

No record evidence shows plaintiff's verbal confrontation escalated into a physical altercation during the 3:15 p.m. confrontation. Plaintiff failed to recall any of the patients' names who allegedly threatened him. The Hospital's physician testified Anderson followed Hospital procedures when he separated plaintiff and the other patient after the verbal confrontation. Competent evidence supports the Commission's findings of fact that plaintiff presented no evidence tending to show a physical confrontation or threats of physical violence occurred around 3:15 p.m.

The Hospital's Nurse Manager testified Anderson acted in conformity with Hospital procedures in separating plaintiff and the other patient. Competent evidence in the record also supports the Commission's finding of fact that Anderson acted properly. This assignment of error is overruled.

V. Conclusion of Law Numbered 4

Plaintiff argues the Commission erred when it concluded he failed to prove the Hospital had notice of the alleged threats under conclusion of law numbered 4, which states:

4. Although the personnel at Cherry Hospital had a duty to care for the plaintiff during his involuntary commitment, the plaintiff has failed to prove a breach of that duty. Specifically, the plaintiff contends that he had repeatedly warned staff members about the threats made against him. Yet, there is no evidence in the record to support this contention. Therefore, the plaintiff has failed to prove that the defendant had notice of any alleged danger to him. Without said notice, the defendant cannot be held responsible for damages to the plaintiff. See, Willis v. City of New Bern, 137 N.C.App. 762, 529 S.E.2d 691 (2000). Further, the happening of an injury does not raise the presumption of negligence. Smith v. Hickory, 252 N.C. 316, 318, 113 S.E.2d 557, 559 (1960) (citation omitted). There must be evidence of notice either actual or constructive. Id.

We disagree.

Under the Tort Claims Act, "[t]he burden of proof [to show negligence is] on the plaintiff. Evidence is usually not required in order to establish and justify a finding that a party has failed to prove that which he affirmatively asserts. It usually occurs and is based on the absence or lack of evidence." Bailey v. N.C. Dep't of Mental Health, 2 N.C.App. 645, 651, 163 S.E.2d 652, 656 (1968). "Foreseeable injury is a requisite of proximate cause, which is, in turn, a requisite for actionable negligence." Barefoot v. Joyner, 270 N.C. 388, 393-94, 154 S.E.2d 543, 547 (1967). To prove foreseeability, a plaintiff must show that the "defendant might have foreseen that some injury would result from his act or omission, or that consequences of a generally injurious nature might have been expected." Williamson v. Liptzin, 141 N.C.App. 1, 10, ...