Estate of Ray ex rel. Ray v. Forgy

744 S.E.2d 468, 227 N.C. App. 24, 2013 WL 1876755, 2013 N.C. App. LEXIS 478
CourtCourt of Appeals of North Carolina
DecidedMay 7, 2013
DocketNo. COA12-1071
StatusPublished
Cited by6 cases

This text of 744 S.E.2d 468 (Estate of Ray ex rel. Ray v. Forgy) 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
Estate of Ray ex rel. Ray v. Forgy, 744 S.E.2d 468, 227 N.C. App. 24, 2013 WL 1876755, 2013 N.C. App. LEXIS 478 (N.C. Ct. App. 2013).

Opinion

MARTIN, Chief Judge.

The Estate of Donna S. Ray and Thomas D. Ray, individually, (together, “plaintiffs”) filed suit on 25 August 2004 against Dr. Keith Forgy, M.D. (“Dr. Forgy”), Grace Hospital, Inc., Blue Ridge Healthcare System, Inc., Carolinas Healthcare System, Inc., and Grace Healthcare System, Inc., (together, “hospital defendants”) alleging negligence by Dr. Forgy and by defendants under the theories of apparent agency and corporate negligence. After initially denying the hospital defendants’ [26]*26motion to dismiss the case pursuant to N.C.G.S. § 1A-1, Rule 9(j), the trial court later granted hospital defendants’ motion for summary judgment on 21 December 2007. The trial court certified the case for immediate appeal to this Court, which dismissed the appeal as interlocutory in an opinion filed 25 March 2009. Plaintiffs and Dr. Forgy participated in a binding arbitration in 2012, which ultimately resulted in judgment for the plaintiffs. Plaintiffs now appeal the 21 December 2007 grant of hospital defendants’ summary judgment motion, as the claims against Dr. Forgy have been resolved and the case is now ripe for appeal. After careful consideration, we reverse and remand for further proceedings.

On 7 August 2003, 43-year-old Donna Ray visited her primary care physician’s office, Burke Primary Care, complaining of abdominal pain, nausea, and vomiting. The doctor who evaluated Ray admitted her to Grace Hospital that day. After various tests over a period of five days, a Burke Primary Care physician requested Dr. Forgy provide a surgical consult for Ray. Dr. Forgy evaluated Ray and recommended she undergo a gastroscopy and colonoscopy. Prior to the tests, Ray signed a consent form which designated Dr. Forgy as “my physician,” and separately, “Grace Hospital Personnel” as an additional healthcare provider. After the tests, Dr. Forgy recommended Ray undergo a laparoscopic cholecystectomy to surgically remove her gallbladder based on suspected gallbladder disease. Ray signed another consent form and the laparoscopic cholecystectomy was performed on 14 August 2003. The post-operative pathology report was negative for gallbladder disease. Ray was discharged from Grace Hospital two days later.

Shortly thereafter, Ray visited Dr. Forgy at his private medical office on 22 August 2003 reporting difficulty urinating and abdominal pain. Dr. Forgy inserted a catheter, which relieved the abdominal pain. Ray saw Dr. Forgy at his office two more times; he removed the catheter on 25 August and followed up with Ray the following day, before ultimately discharging her from his care with instructions to return if she had any questions or problems that she suspected were related to her cholecystectomy.

On 9 September 2003, Ray was taken to the Grace Hospital Emergency Department complaining of abdominal pain, nausea, vomiting, and difficulty urinating, where various tests were performed. A few days later, a Burke Primary Care physician requested that Dr. Forgy evaluate Ray again. After performing several tests, Dr. Forgy suspected that Ray was suffering from a biliary leak, a complication of the gallbladder removal procedure. Ray’s husband, Thomas Ray, signed a consent form on her behalf authorizing Dr. Forgy to perform a laparotomy, an [27]*27exploratory abdominal surgery. Dr. Forgy’s post-operative report concluded that there was “no biliary leak.” Ray’s condition quickly worsened after the laparotomy and she was transferred to the Intensive Care Unit at Frye Regional Medical Center on 16 September 2003. Insertion of a drain at Frye suggested that Ray did in fact have a biliary leak or an injury to the liver. On 30 October 2003, Ray was transferred to the Intensive Care Unit at UNC-Chapel Hill, where she remained until her death on 11 July 2004.

On appeal, plaintiffs contend the trial court erred in granting summary judgment for the hospital defendants because a genuine issue of material fact exists with regard to two theories of liability: apparent agency and corporate negligence.

“Our standard of review of an appeal from summary judgment is de novo; such judgment is appropriate only when the record shows 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 re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008) (quoting Forbis v. Neal, 361 N.C. 519, 524, 649 S.E.2d 382, 385 (2007)). On appeal, this Court “is restricted to assessing the record before it. Only those pleadings and other materials that have been considered by the trial court for purposes of summary judgment and that appear in the record on appeal are subject to appellate review Rentenbach Constructors, Inc. v. CM P’ship, 181 N.C. App. 268, 277, 639 S.E.2d 16, 22 (2007) (quoting Waste Mgmt. of Carolinas, Inc. v. Peerless Ins. Co., 315 N.C. 688, 690, 340 S.E.2d 374, 377 (1986)) (internal quotation marks omitted).

I.

Plaintiffs contend there is a genuine issue of material fact as to whether Dr. Forgy was the hospital defendants’ apparent agent, thereby rendering such defendants vicariously liable for his acts through agency by estoppel. Specifically, plaintiffs argue there was no notice that Dr. Forgy was an independent contractor because his picture, name, and telephone number were advertised in defendants’ brochure, and Dr. Forgy never told Ray or her husband that he was not an employee of the hospital. We disagree.

“Under the doctrine of respondeat superior, a hospital is liable for the negligence of a physician or surgeon acting as its agent.” Hylton v. Koontz, 138 N.C. App. 629, 635, 532 S.E.2d 252, 257 (2000), disc, review denied and appeal dismissed, 353 N.C. 373, 546 S.E.2d 603-04 [28]*28(2001). To hold a hospital liable for the negligence of a doctor under the theory of apparent agency,

a plaintiff must prove that (1) the hospital has held itself out as providing medical services, (2) the plaintiff looked to the hospital rather than the individual medical provider to perform those services, and (3) the patient accepted those services in the reasonable belief that the services were being rendered by the hospital or by its employees.

Diggs v. Novant Health, Inc., 177 N.C. App. 290, 307, 628 S.E.2d 851, 862 (2006), disc, review and supersedeas denied, 361 N.C. 426, 648 S.E.2d 209 (2007).

Here, evidence before the trial court at the time of defendants’ motion for summary judgment suggests there is no issue of material fact whether Ray looked to the hospital rather than to the individual medical provider, Dr. Forgy, to perform her surgeries. Before the gastroscopy and colonoscopy, and the laparoscopic cholecystectomy, Ray signed request for treatment forms. In a section labeled “Designation^),” she checked the box labeled “Physician” and wrote in “Dr.

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Bluebook (online)
744 S.E.2d 468, 227 N.C. App. 24, 2013 WL 1876755, 2013 N.C. App. LEXIS 478, Counsel Stack Legal Research, https://law.counselstack.com/opinion/estate-of-ray-ex-rel-ray-v-forgy-ncctapp-2013.