Watts v. Cumberland County Hosp. System, Inc.

• Citation: 75 N.C.App. 1,330 S.E.2d 242
• Decision Date: 04 June 1985
• Docket Number: No. 8412SC692,8412SC692
• Parties: Linda Cade WATTS, Kim Watts, and George Watts v. CUMBERLAND COUNTY HOSPITAL SYSTEM, INC.; Dr. James Askins; Dr. Ralph Moress; North Carolina Baptist Hospitals, Inc.; Dr. Victor Keranen; Dr. W.C. Miller; Dr. Menno Pennick; Dr. Eban Alexander, Jr.; Dr. James Toole, and Dan Hall.
• Court: Court of Appeal of North Carolina (US)

Page 242

330 S.E.2d 242

75 N.C.App. 1

Linda Cade WATTS, Kim Watts, and George Watts v. CUMBERLAND COUNTY HOSPITAL SYSTEM, INC.; Dr. James Askins Dr. Ralph Moress; North Carolina Baptist Hospitals, Inc. Dr. Victor Keranen; Dr. W.C. Miller; Dr. Menno Pennick Dr. Eban Alexander, Jr.; Dr. James Toole, and Dan Hall.

No. 8412SC692.

Court of Appeals of North Carolina.

June 4, 1985.

Hedahl & Radtke by Joan E. Hedahl, Fayetteville, for plaintiffs-appellants.

Nance, Collier, Herndon and Wheless by James R. Nance, Sr., Fayetteville, for defendant-appellee.

WHICHARD, Judge.

I.

The only question argued in plaintiffs' brief is whether the court erred in granting summary judgment for Hall on the claims asserted by Linda Watts. Appellate review is limited to questions raised by assignments of error and dismissed in a party's brief. N.C.R.App.P. 28(a). Any other questions raised by the assignments of error are deemed abandoned. Id. Since plaintiffs have not brought forward and argued any questions regarding summary judgment for Hall on the claims asserted by plaintiffs husband and daughter, we deem those questions abandoned.

Plaintiff Linda Watts (hereafter "plaintiff") contends the court erred in granting summary judgment for Hall with respect to each of her claims. G.S. 1A-1, Rule 56(c) permits the granting of summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." In ruling on a motion for summary judgment, the court must look at the record in the light most favorable to the party opposing the motion. Patterson v. Reid, 10 N.C.App. 22, 28, 178 S.E.2d 1, 5 (1970).

A defendant who moves for summary judgment assumes the burden of positively and clearly showing that there is no genuine issue as to any material fact and that he or she is entitled to judgment as a matter of law. See Bernick v. Jurden, 306 N.C. 435, 440, 293 S.E.2d 405, 409 (1982); Page v. Sloan, 281 N.C. 697, 705, 190 S.E.2d 189, 194 (1972); Miller v. Snipes, 12 N.C.App. 342, 344, 183 S.E.2d 270, 272 (1971), cert. denied, 279 N.C. 619, 184 S.E.2d 883 (1971). A defendant may meet this burden by (1) proving that an essential element of plaintiff's claim is nonexistent, or (2) showing through discovery that plaintiff cannot produce evidence to support an essential element of his or her claim, or (3) showing that plaintiff cannot surmount an affirmative defense which would bar the claim. Bernick, 306 N.C. at 440-41, 293 S.E.2d at 409. If the defendant fails to meet this initial burden of proof, the motion must fail even though the plaintiff does not submit any affidavits or other supporting materials in opposition to the motion. See Best v. Perry, 41 N.C.App. 107, 110, 254 S.E.2d 281, 284 (1979); Edwards v. Bank, 39 N.C.App. 261, 269, 250 S.E.2d 651, 657 (1979). The plaintiff is not required to present evidence to support his or her claim unless the defendant meets the initial burden of proof. Id. Once the defendant satisfies his or her burden of proof, however, the burden shifts to the plaintiff to present a forecast of evidence which shows that a genuine issue of fact exists, or to provide an excuse for not so doing. Bernick, 306 N.C. at 441, 293 S.E.2d at 409; Best, 41 N.C.App. at 110, 254 S.E.2d at 284. If the plaintiff does not respond as required, summary judgment, if appropriate, should be entered for defendant. See Best, 41 N.C.App. at 110, 254 S.E.2d at 284.

II.

We briefly address Hall's contention that because plaintiffs allegedly failed to comply with G.S. 1A-1, Rule 15(a), the original complaint rather than the amended complaint should be considered in determining whether he was entitled to summary judgment. Rule 15(a) provides, in relevant part:

A party may amend his pleading once as a matter of course at any time before a responsive pleading is served.... Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires....

The original complaint was filed by plaintiffs without the assistance of counsel. Hall answered and plaintiffs thereafter retained counsel who filed an amended complaint. The record does not show whether plaintiffs obtained leave of court or the written consent of the defendants to amend their pleading. Hall contends that plaintiffs did neither and that therefore the amended complaint should be disregarded. We note as well that in a companion appeal 74 N.C.App. 769, 330 S.E.2d 256 from the entry of summary judgment for several of the remaining defendants, the defendants admit that plaintiffs obtained leave of court to file the amended complaint.

It does not appear that Hall objected to the amended complaint or raised the issue of its validity before the trial court. Instead, Hall indicated his consent to the amended complaint by filing an answer to it, by responding to the allegations within it, and by submitting materials in support of his motion for summary judgment. Clearly, the parties and the court treated the amendment of the complaint as proper. A contention not raised in the trial court may not be raised for the first time on appeal. Hall v. Hall, 35 N.C.App. 664, 665-66, 242 S.E.2d 170, 172 (1978), disc. rev. denied, 295 N.C. 260, 245 S.E.2d 777 (1978). Accordingly, the validity of the amended complaint is not before us and we proceed on the assumption that the amendment was proper.

III.

We next consider whether the court erred in granting summary judgment for Hall on plaintiff's breach of fiduciary duty claim. Plaintiff alleged: that Hall is a practicing marital and family therapist duly certified as provided by G.S. 90-270.45 et seq.; that he maintains a counseling practice in Fayetteville; that he is a health care provider as defined in G.S. 90-21.11; that in late 1974 or 1975 she began treatment with Hall to help her deal with pain she was suffering from injuries sustained in an automobile accident; that she continued to accept counseling from Hall until July 1981; that she never gave any release or waiver, written or oral, authorizing Hall to discuss her case with anyone; that, to the contrary, she explicitly and consistently instructed him not to involve himself in her medical case; that Hall owed her a duty of confidentiality; that her communications with Hall were privileged; that Hall breached his fiduciary duty to her in that he disclosed confidential information about her to others without her knowledge or consent in spite of her explicit instructions to the contrary; and that consequently she suffered a loss of her privacy and a destruction of her confidential relationship. Plaintiff further alleged that Hall continued to discuss her case after she dismissed him as her counselor in July 1981; that specifially Hall discussed her case with Dr. Pennick after she dismissed Hall even though she had told him not to; and that in 1978 Dr. Pennick and Hall exchanged letters reflecting a referral arrangement between them and freely discussed plaintiff's affairs without her knowledge or consent.

In his answer Hall admitted that he was at the time of the institution of this action a duly certified marital and family therapist as described in Chapter 90, Article 18C of our General Statutes; that he maintains a counseling practice in Fayetteville; and that in late 1974 or 1975 and thereafter, plaintiff sought and accepted his counseling services. He further admitted that he had referred plaintiff to Dr. Pennick and to another doctor, Dr. Toole, in an effort to aid her in obtaining the best medical assistance available; and that as a part of his continuing interest in her he had discussed verbally and in writing the problems he found confronting her. He denied the remaining allegations. In an affidavit in support of his motion for summary judgment, Hall again admitted that he had communicated with Doctors Pennick and Toole, to whom he had referred plaintiff, as a part of his continuing interest in her welfare. Hall submitted nothing further in support of his motion with respect to this claim.

In an affidavit in opposition to the motion, plaintiff reasserted her allegations in greater detail and further stated that Hall had admitted to her that he had spoken with and/or written to four of the doctors she had seen regarding her medical case, including doctors Pennick and Toole.

We first determine whether plaintiff has stated a claim upon which relief can be granted. Allegations should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no facts that would entitle her to relief. O'Neill v. Bank, 40 N.C.App. 227, 232, 252 S.E.2d 231, 235 (1979). Plaintiff seeks to hold Hall liable as a health care provider for his alleged unauthorized disclosure of confidential information about her, which disclosure allegedly breached his duty of confidentiality. Our courts have not previously considered whether a cause of action may be maintained against a health care provider based upon unauthorized disclosure of confidential information about a patient; however, several jurisdictions have considered the validity of such a claim asserted against a physician or psychiatrist. See Annot., 20 A.L.R.3d 1109 (1968). The majority have upheld the patient's right to recover from a physician for unauthorized disclosures. See, e.g., Humphers v. First Interstate Bank, 68 Or.App. 573, 684 P.2d 581, 587 (1984), petition for review allowed, 687 P.2d 795 (Or.1984); MacDonald v. Clinger, 84 A.D.2d 482, 486, 446 N.Y.S.2d 801, 804 (1982). Various theories have been suggested as a basis for the cause of action, including invasion of privacy, breach of implied contract, breach of fiduciary duty or duty of confidentiality, and medical malpractice. Courts considering the issue have...