Burgess v. Campbell

642 S.E.2d 478, 182 N.C. App. 480, 2007 N.C. App. LEXIS 692
CourtCourt of Appeals of North Carolina
DecidedApril 3, 2007
DocketNo. COA06-165
StatusPublished
Cited by1 cases

This text of 642 S.E.2d 478 (Burgess v. Campbell) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Burgess v. Campbell, 642 S.E.2d 478, 182 N.C. App. 480, 2007 N.C. App. LEXIS 692 (N.C. Ct. App. 2007).

Opinion

CALABRIA, Judge.

Rhonda F. Burgess (“plaintiff’) appeals an order entered 10 May 2005 granting summary judgment in favor of defendants Alan L. Rosen, M.D., and Capital Radiology Associates, P.A. (collectively “Dr. Rosen”). We reverse.

On 29 November 2001, plaintiff took a pregnancy test in the medical office where she worked and tested positive. Later that same day, she experienced abdominal discomfort and sought treatment at Raleigh Community Hospital’s emergency room. Plaintiff was referred to the hospital by Dr. Lewis Stocks (“Dr. Stocks”), a doctor who had a referral relationship with plaintiff’s employer. Dr. Stocks specifically requested testing and the hospital performed endovagi-nal, gall bladder, and pelvic ultrasound examinations, specifically transabdominal and endovaginal ultrasounds.

A total of five ultrasounds were presented to Dr. Rosen, the radiologist on call, to read and interpret. Dr. Rosen reported: “No evidence of an intrauterine pregnancy. The patient’s positive pregnancy test may be related to a very early intrauterine gestation, too early to visualize or to an ectopic pregnancy. Further evaluation with endo-vaginal scan may be useful.”

The plaintiff then sought guidance from Dr. Stocks, who told her that it might be too early to determine her pregnancy by an ultrasound examination. He advised her to go home and rest. The plaintiff became alarmed, however, and returned to Raleigh Community Hospital’s emergency room, where she was evaluated by Dr. Robert Kratz (“Dr. Kratz”). Dr. Kratz ordered an HCG test, which measures pregnancy-specific hormonal levels. The HCG test revealed hormonal levels consistent with a pregnancy. Dr. Kratz was concerned the two tests showed opposite results — the ultrasound interpreted by Dr. Rosen showing no intrauterine pregnancy and the HCG test showing [482]*482an active pregnancy. Dr. Kratz subsequently called Dr. Eric Rappaport (“Dr. Rappaport”), an obstetrician/gynecologist.

Dr. Rappaport performed a diagnostic laparoscopy, in which he inspected the fallopian tubes for a possible ectopic pregnancy and found none. Dr. Rappaport also inspected the ultrasound films originally interpreted by Dr. Rosen and concluded those films showed no evidence of an intrauterine pregnancy. Dr. Rappaport noted in the plaintiff’s record, “No ectopic seen on laparoscopy. Review of U/S film — EV done — no IUR P: admit for observation & recheck of HCG.” Dr. Rappaport subsequently referred the plaintiffs care to his partner, Dr. Joseph Campbell (“Dr. Campbell”), also an obstetrician/gynecologist.

When Dr. Campbell first evaluated the plaintiff, he also concluded that she had no viable pregnancy. He based his conclusion on the plaintiffs presentation of pain, the second HCG test showing elevated hormonal levels, and the absence of a definite intrauterine pregnancy on the ultrasound films as reported by Dr. Rappaport. As a result of his initial diagnosis, Dr. Campbell recommended medication for the plaintiff that terminates a pregnancy. Specifically, Methotrexate was administered to induce miscarriage and to prevent a rupture of her fallopian tubes from what Dr. Campbell diagnosed as an ectopic pregnancy.

The plaintiff then followed up with Dr. Rappaport, who ordered another HCG test on 3 December 2001, which showed hormonal levels consistent with a pregnancy of several weeks’ gestation. The following day Dr. Campbell performed another ultrasound. This ultrasound showed a nine-millimeter intrauterine yolk sac, indicating an active pregnancy. Dr. Campbell referred the plaintiff to Dr. Stephen Wells, a high-risk pregnancy specialist at Duke University Medical Center. The plaintiff subsequently miscarried.

On 9 July 2003 plaintiff filed an action alleging negligence and negligent infliction of emotional distress against Dr. Campbell, Dr. Rosen, Capital Radiology Associates, P.A., Raleigh OB/GYN Centre, P.A., Hayes Holt Rappaport & Campbell, P.A., and Duke University Health System. Dr. Rosen’s motion for summary judgment was granted in an order dated 10 May 2005. From that order, plaintiff appeals.

The first issue we consider is whether this appeal is properly before this Court. In the case sub judice, summary judgment was [483]*483granted as to one but not all of the defendants and the trial court did not certify that there was “no just reason for delay” as required by N.C. Gen. Stat. § 1A-1, Rule 54(b) (2005). However, N.C. Gen. Stat, § 1-277 (2005) and N.C. Gen. Stat. § 7A-27(d) allow this Court to consider an interlocutory appeal where the grant of summary judgment affects a substantial right. Id.

Entry of judgment for fewer than all the defendants is not a final judgment and may not be appealed in the absence of certification pursuant to Rule 54(b) unless the entry of summary judgment affects a substantial right. See N.C. Gen. Stat. § 1-277 (1996); N.C. Gen. Stat. § 1A-1, Rule 54(b) (1990); N.C. Gen. Stat. § 7A-27(d) (1995). Our Supreme Court has held that a grant of summary judgment as to fewer than all of the defendants affects a substantial right when there is the possibility of inconsistent verdicts, stating that it is “the plaintiffs right to have one jury decide whether the conduct of one, some, all or none of the defendants caused his injuries ....” Bernick v. Jurden, 306 N.C. 435, 439, 293 S.E.2d 405, 409 (1982). This Court has created a two-part test to show that a substantial right is affected, requiring a party to show “(1) the same factual issues would be present in both trials and (2) the possibility of inconsistent verdicts on those issues exists.” N.C. Dept. of Transportation v. Page, 119 N.C. App. 730, 736, 460 S.E.2d 332, 335 (1995).

Camp v. Leonard, 133 N.C. App. 554, 557-58, 515 S.E.2d 909, 912 (1999). As in Camp, this case involves multiple defendants but the same factual issues, and different proceedings may bring about inconsistent verdicts on those issues. Specifically, plaintiffs suit alleges multiple, overlapping acts of medical malpractice resulting in harm, and it is best that one jury hears the case. Accordingly, we determine that the trial court’s grant of summary judgment affects a substantial right and this Court will consider plaintiffs appeal.

Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavit's, if any, show that there is no genuine issue of material fact and that any party is entitled to a judgment as a matter of law.” N.C. Gen. Stat. § 1A-1, Rule 56(c) (2005). “On appeal, an order allowing summary judgment is reviewed de novo.” Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 470, 597 S.E.2d 674, 693 (2004). Following Dr. Rosen’s motion for summary judgment, the plaintiff tendered evidence opposing summary judgment. That evidence included the plaintiff’s medical records, as well as deposition testimony from [484]*484Dr. Rosen, Dr. Campbell, and Dr. Rappaport. It also included the. deposition testimony of Dr. Shawn Quillin (“Dr. Quillin”), a radiologist, qualified as an expert pursuant to N.C. Gen. Stat. § 1A-1, Rule (9)0) (2005).

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Bluebook (online)
642 S.E.2d 478, 182 N.C. App. 480, 2007 N.C. App. LEXIS 692, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burgess-v-campbell-ncctapp-2007.