 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Creech v. Melnik12/4/2001
Appeal by plaintiffs from judgment entered 4 August 1999 by Judge Henry V. Barnette, Jr. in Superior Court, Columbus County. Heard in the Court of Appeals 25 April 2001.
Previously, our courts discussed the facts of this case in Creech v. Melnik, 347 N.C. 520, 495 S.E.2d 907, (1998) (Creech II); Creech v. Melnik, 124 N.C. App. 502, 477 S.E.2d 680 (1996) (Creech I). In brief, Sharon and Travis Creech, in their capacities as guardians ad litem, brought a medical malpractice action against Dr. Evelyn H. Melnik, M.D., alleging that she provided negligent birthing treatment to their son, Justin, on 12 October 1980.
Dr. Melnik, a neonatologist, directed the newborn nursery at the hospital where Justin was born. Justin's birth began with unstable vital signs necessitating care in the intensive care nursery. Indisputably, oxygen deprivation caused Justin to suffer brain damage, blindness, quadriplegia, cerebral palsy, profound mental retardation, and microcephaly. Plaintiffs alleged that after Justin's admission to intensive care, his condition was significantly worsened by Dr. Melnik's failure to properly care for him from 2:30 p.m. to 4:30 p.m. on 23 September 1980.
Before filing this action, W. Paul Pulley, Jr., plaintiffs' attorney, talked with Dr. Melnik on several occasions. Dr. Melnik contended that during those conversations, Mr. Pulley assured her that if she spoke with him concerning the events surrounding Justin's birth, plaintiffs would not sue her. She stated that with that assurance, she gave information and opinions concerning the care provided for Justin.
Based on evidence of that assurance, the trial court granted summary judgment in favor of Dr. Melnik under the affirmative defenses of equitable estoppel and breach of implied contract not to sue. This Court affirmed, see Creech I; however, our Supreme Court remanded the action for trial to resolve genuine issues of material fact that precluded summary judgment. See Creech II. This appeal by plaintiffs arises from the resulting jury verdict in favor of Dr. Melnik on the grounds that plaintiffs breached their implied contract not to sue her.
Plaintiffs challenge the jury's verdict of breach of an implied contract on the grounds that (1) no evidence showed that Mr. Pulley had authority to contract on behalf of the minor with Dr. Melnik, and (2) no evidence showed that a court reviewed and approved the alleged contract on behalf of the minor.
Preliminarily, we address the issue of whether the earlier decisions in Creech I and II set forth a doctrine of law that decides the issues in this appeal--whether Mr. Pulley had authority to contract on behalf of the minor, and whether the alleged contract on behalf of the minor required court approval. We conclude that they do not.
As a general rule, when an appellate court passes on questions and remands the case for further proceedings to the trial court, the questions therein actually presented and necessarily involved in determining the case, and the decision on those questions become the law of the case . . . . Tennessee-Carolina Transp. Inc. v. Strick Corp., 286 N.C. 235, 239, 210 S.E.2d 181, 183 (1974); see also North Carolina Nat. Bank v. Virginia Carolina Builders, 307 N.C. 563, 299 S.E.2d 629 (1983); Sloan v. Miller Bldg. Corp., 128 N.C. App. 37, 41, 493 S.E.2d 460, 463 (1997); Weston v. Carolina Medicorp, Inc., 113 N.C. App. 415, 417, 438 S.E.2d 751, 753 (1994).
Under the law of the case doctrine, an appellate court ruling on a question governs the resolution of that question both in subsequent proceedings in the trial court and on a subsequent appeal, provided the same facts and the same questions, w
Page 1 2 3 4 North Carolina Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
By using the system, you agree to TERMS OF SERVICE
|