Moore v. Proper

715 S.E.2d 586, 215 N.C. App. 202, 2011 N.C. App. LEXIS 1900
CourtCourt of Appeals of North Carolina
DecidedSeptember 6, 2011
DocketCOA10-1475
StatusPublished
Cited by4 cases

This text of 715 S.E.2d 586 (Moore v. Proper) 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
Moore v. Proper, 715 S.E.2d 586, 215 N.C. App. 202, 2011 N.C. App. LEXIS 1900 (N.C. Ct. App. 2011).

Opinions

HUNTER, JR., Robert N., Judge.

[203]*203I. Factual and Procedural History

Janet E. Moore (“Plaintiff’) sought treatment for a toothache on 16 January 2006 and was treated by Dr. Proper, a dentist in Dr. Shaun O’Heam’s office. On 12 January 2009, Plaintiff’s counsel filed a motion and obtained an order from the court pursuant to Rule 9(j) extending the statute of limitations in a medical malpractice action to 16 May 2009 to seek an appropriate expert witness. Plaintiff’s 5 March 2009 Complaint alleges Dr. Proper fractured her jaw while extracting a tooth, and thereafter discharged her without notifying her of the fracture and providing the proper care. Plaintiff alleges Dr. O’Heam was negligent in failing to provide Plaintiff care after the fracture and that O’Hearn’s office and Affordable Care are liable under the theories of respondeat superior, agency, or vicarious liability.

As required by Rule 9(j) of the North Carolina Rules of Civil Procedure, the Complaint contained the following language: “[t]he medical care in this case has been reviewed by Dr. Joseph C. Dunn, who is reasonably expected to qualify as an expert witness under Rule 702 of the North Carolina Rules of Evidence and who is willing to testify that the medical care provided by the Defendants did not comply with the applicable standard of care.” Defendants, in answering this allegation, denied the allegation for lack of information and belief.

Pursuant to an order of the trial court dated 10 August 2009 (which does not appear in the record), Plaintiff provided an “Expert Witness Designation” which identified Dr. Joseph C. Dunn as Plaintiff’s expert witness. The designation describes Dr. Dunn as a 1966 graduate of the University of North Carolina at Chapel Hill and a 1970 graduate of the University of Louisville School of Dentistry. Dr. Dunn also practiced in the United States Dental Corp. and practiced in Asheville for almost 25 years. Dr. Dunn explained the alleged deviation from the applicable standard of care as follows:

The Plaintiff was not treated in accordance with the expected standard of care for treatment by a General Dentist in North Carolina in that she was not advised of the risks of a fractured jaw occurring from any treatment which was to be afforded by Dr. Proper, Dr. Proper did not take any steps to prevent the fracture of the jaw if extraction became difficult and he failed to provide for her proper follow up care after she experienced pain as a result of the extraction.

Defendants served 10 interrogatories pursuant to Rule 90)- Dr. Dunn answered the interrogatories, in part, as follows:

[204]*2042. State whether you practice dentistry and, if so, what percentage of your professional time was spent in the clinical practice of dentistry, during January, 2005 to January, 2006, and, if not, in what specialty did you practice during that time?
ANSWER: I retired in July 1997 after 35 years of general dentistry practice. However, I have maintained a valid license to practice general dentistry in good standing since my retirement in July of 1997.
3. State whether you taught students in an accredited health professional school or an accredited residence or clinical research program in the area of dentistry and, if so, what percentage of your professional time was spent in teaching students dentistry during January, 2005 to January, 2006.
ANSWER: N/A

After receipt of these Answers, Defendants did not immediately seek to dismiss Plaintiffs Complaint. Discovery continued.

On 29 April 2010, Dr. Dunn was deposed by Defendants. Among the answers given in his deposition were the following responses:

Q. I want to talk a little bit about the time period from January of 2005 until January of 2006. Were you actually practicing dentistry then?
A. I was doing the same fill-in work.
Q. Do you recall how many days you filled in that year?
A. It was a lot more than it is now, but, I — no, I couldn’t really give you a number. I’ll throw out one, 30 days maybe. I really don’t know ....
Q. I know you don’t remember a whole lot about that time, but can you — we’re going through the same exercise of breaking it down percentage wise of your practice from January of 2005 until January of 2006. What percentage of your time was in the active clinical practice of dentistry?
A. Well, you know, that is really an unfair question. Whenever you are looking at a patient, you are practicing clinical dentistry.
Q. Right.
[205]*205A. Whether you are diagnosing it or looking at their cleaning, or you’re filling a tooth, taking out a tooth. So I would say when I am there it is 100 percent. . . .
Q. All right. Over the entire year, of all the time you spent in a year of your professional time — because I understand at that point in time you were also running for mayor?
A. Uh-huh [yes].
Q. You were retired spending time with your grandchildren?
A. Uh-huh [yes],
Q. What percentage of your time are you actually seeing patients?
A. Okay. Gosh, that’s-—
[Plaintiff’s Lawyer]: Is that a 24 hour day time? Is that an eight hour day time?
Q. Let’s say an eight hour work day. Of all the eight hour work days in any given year—
A. Three hundred sixty-five days a year.
Q. You are not working on the weekends, are you?
A. Okay.
Q. You’re working — dentist[s] work four days a week?
A. Yeah, most of them.
Q. All right. Of those four days a week, we will assume that there are eight professional hours in a day. What percentage over the entire year are you working in the active clinical practice of dentistry?
A. I would say it’s got to be less than five percent, I guess.
Q. Less than five percent?
A. Uh-huh (yes). That is just a thrown out number.
Q. But it’s not 95 percent?
A. No.
Q. You wouldn’t say that? It’s not 50 percent?
A. No, it’s just as needed you know. . . .
[206]*206Q. So just so I am clear, you believe that your active clinical practice of dentistry was roughly less than five percent of your professional time?
A. Yes.
Q. Tell me a little bit about running for mayor, how much time did that take up?
A. It took up a lot.
Q. I’m sure.
A. You know, I’m on city council too, that was a lot of work.
Q.

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Related

In re Murdock
730 S.E.2d 811 (Court of Appeals of North Carolina, 2012)
Moore v. Proper
726 S.E.2d 812 (Supreme Court of North Carolina, 2012)
Moore v. Proper
715 S.E.2d 586 (Court of Appeals of North Carolina, 2011)

Cite This Page — Counsel Stack

Bluebook (online)
715 S.E.2d 586, 215 N.C. App. 202, 2011 N.C. App. LEXIS 1900, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moore-v-proper-ncctapp-2011.