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Carr v. Wake Medical Center9/7/2004
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Cleopatra Carr ("plaintiff") appeals from the trial court's orders filed on 19 March 2003 and 21 March 2003 granting the motions to dismiss of Dr. Gordon R. Randall, Wake Radiology Consultants, and Dr. Glendale Moore (collectively "defendants") in a medical negligence lawsuit. We conclude that Carr's interlocutory appeal is premature and, thus should not be heard by this Court.
The evidence indicates that plaintiff's mother, Viola Z. High ("High"), an eighty-eight year old woman, was in a head-on automobile accident on 27 August 2000 in which the airbag deployed in her granddaughter's vehicle. At the scene of the accident, High complained of neck and chest pains and had a visible neck abrasion and neck fracture. An EMS unit immobilized High and transported her to WakeMed Emergency Department where she arrived around 10:12 p.m. Dr. James M. Merritt ("Dr. Merritt"), an emergency room doctor, initially examined High and noted that she complained of neck pains and had tenderness in parts of her neck, chest, and abdomen. Dr. Merritt ordered cervical series x-rays and assigned the case to Dr. Joseph E. Williamson ("Dr. Williamson") before the x-rays were completed. Dr. Gordon R. Randall ("Dr. Randall"), a radiologist, performed the radiology studies. He found that High's C-spine was extremely osteopenic; however, no fractures were identified nor any subluxations. Consequently, Dr. Williamson only diagnosed High as having a contusion with three rib fractures. High was discharged with prescriptions for pain at approximately 6:00 a.m. on 28 August 2000. On 29 August 2000, High returned to WakeMed Emergency Department because her pain had increased. Dr. Glendale Moore ("Dr. Moore") admitted High to the hospital for medical management and ordered physical therapy for High starting on 30 August 2000. High's condition worsened and Dr. Moore requested a neurological consultation on 4 September 2000. Dr. William Ferrell performed the consultation and noted that High had a large bruise over her posterior lower cervical spine. He ordered head and cervical spine MRI studies. Dr. Joseph W. Melamed interpreted the studies and discovered a fractured C-spine with displacement. He called Dr. Randall to review the studies and admitted that examination on the original films was difficult. On 8 September 2000, Dr. Moore noted, " o not resuscitate -- as requested by family." On 10 September 2000 High died as a result of complications from the cervical fracture.
The issue on appeal is whether plaintiff's appeal of the trial court's order dismissing three defendants was premature when claims against the remaining defendants still remain before the trial court.
Defendants Moore, Randall, and Wake Radiology Consultants contend that Carr's appeal is interlocutory and not properly before the Court. We agree.
"'An interlocutory order is one made during the pendency of an action, which does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy.'" Tarrant v. Freeway Foods of Greensboro,Inc., ___ N.C. App. ___, ___, 593 S.E.2d 808, 810 (2004), (quoting Veazey v. Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950)). Interlocutory orders are only appealable in two of the following instances: (1) the trial court certifies that there is no just reason to delay the appeal pursuant to Rule 54(b), or (2) a substantial right would be violated as recognized under N.
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